Monday, February 23, 2009

Workplace Retaliation

There are three main terms that are used to describe retaliation. Retaliation occurs when an employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity. These three terms are described below.

Adverse Action

An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Examples of adverse actions include: employment actions such as termination, refusal to hire, and denial of promotion,
other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance, and
any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights.

Adverse actions do not include petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, "snubbing" a colleague, or negative comments that are justified by an employee's poor work performance or history.

Even if the prior protected activity alleged wrongdoing by a different employer, retaliatory adverse actions are unlawful. For example, it is unlawful for a worker's current employer to retaliate against him for pursuing an EEO charge against a former employer.

Of course, employees are not excused from continuing to perform their jobs or follow their company's legitimate workplace rules just because they have filed a complaint with the EEOC or opposed discrimination.

For more information about adverse actions, see EEOC's Compliance Manual Section 8, Chapter II, Part D (http://www.eeoc.gov/policy/docs/retal.html#IIpartD).

Covered Individuals

Covered individuals are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability. Individuals who have a close association with someone who has engaged in such protected activity also are covered individuals. For example, it is illegal to terminate an employee because his spouse participated in employment discrimination litigation.

Individuals who have brought attention to violations of law other than employment discrimination are NOT covered individuals for purposes of anti-discrimination retaliation laws. For example,"whistleblowers" who raise ethical, financial, or other concerns unrelated to employment discrimination are not protected by the EEOC enforced laws.

Protected Activity

Protected activity includes opposition to a practice believed to be unlawful discrimination.

Opposition is informing an employer that you believe that he/she is engaging in prohibited discrimination. Opposition is protected from retaliation as long as it is based on a reasonable, good-faith belief that the complained of practice violates anti-discrimination law; and the manner of the opposition is reasonable.

Examples of protected opposition include:

--Complaining to anyone about alleged discrimination against oneself or others;
--Threatening to file a charge of discrimination;
--Picketing in opposition to discrimination; or
--Refusing to obey an order reasonably believed to be discriminatory.

Examples of activities that are NOT protected opposition include:

--Actions that interfere with job performance so as to render the employee ineffective; or
--Unlawful activities such as acts or threats of violence.
--Participation in an employment discrimination proceeding.

Participation means taking part in an employment discrimination proceeding.

Participation is protected activity even if the proceeding involved claims that ultimately were found to be invalid. Examples of participation include:

--Filing a charge of employment discrimination;
--Cooperating with an internal investigation of alleged discriminatory practices; or
--Serving as a witness in an EEO investigation or litigation.

A protected activity can also include requesting a reasonable accommodation based on religion or disability.

For more information about Protected Activities, see EEOC's Compliance Manual, Section 8 (http://www.eeoc.gov/policy/docs/retal.html#IIpartB), Chapter II, Part B - Opposition and Part C – Participation (http://www.eeoc.gov/policy/docs/retal.html#IIpartC).

Source: http://www.eeoc.gov/types/retaliation.html

13 Comments:

Anonymous Jobs In Pakistan said...

Hi

I think these informations about workplace relation is so better for knowledge.

4:02 AM  
Anonymous Anonymous said...

I am involved in a very complex issue with Nike. It involves Racial Discrimination, i.e. Nooses hanging in corporate offices at the Beaverton Headquarters location I did bring issue with this and was told I was too sensitive and needed to be a team player…as well as when I advised HR about the different treatment of team members he advised me it happened because The manger felt that certain team members were his “equal” they were all white, me the only Black person on the team. Illegal employment practices They were allowing “certain employees to work seven hour days and manipulate the work schedules’ to go home early (no lunch )as well as on a corporate level have meeting lunches for hourly employees which meant we feed you so we won’t have to give you your require by law lunch break for the day, and retaliation when I contacted human resources with my complaints of discrimination I was told I didn’t understand. The manager was “not like that “ “he is a good guy” and they suggested it was conflict as well as I was told when I advice HR that It was internally protected discrimination I was emailed back and told “you are entitled to your opinion” I read your blog and they have tried every tactic you have mentioned. They tried to rewrite my termination after I proved their allegations were false, I so very frustrated and need to get this story off my chest! Please continue writing.

8:38 AM  
Blogger S. Mary Wills said...

Anonymous--

I've been having a terrible winter and have been frequently ill. That's why I've missed posting on some days and why I haven't had time to check the email---between being sick and working the night shift!

The hanging of a noose is an example of a single incident in the workplace that rises to the level of being egregious and actionable because the Supreme Court has attested to the racial hatred and threats conveyed by a noose.

The response from your HR department was insufficient. As I've written before, too many HR staff simply want to protect the company as opposed to working hard to prevent and/or stop discriminatory, harassing, and retaliatory behavior.

You said they were rewriting your termination letter? Are you now terminated or is a termination still in the works/delayed?

In either case, and just based on your short write-up, it sounds like you should contact an investigatory agency like the EEOC, the Human Relations Commission in your state or the Office of Human Rights or that you should seek legal counsel.

You can't be accused of being sensitive with a hanging noose. And, any claim that certain employees are "equals" amounts to an admission of discriminatory and disparate treatment of employees--seemingly based on race.

Based on what you've written, I would strongly considering to pursue this. This is not the first time I've heard about Nike having race-based issues with employees. Are there other employees that may want to be a part of a complaint process with you in a class action suit?

If not, you should still consider pursuing this--if you are mentally, physically, and emotionally up to the challenge of fighting back!!

10:16 AM  
Anonymous Jobs In Islamabad said...

Hi

I think these informations about retaliation is so better for our knowledge.

5:22 AM  
Anonymous Anonymous said...

I am a victim of alleged retaliation from my former employer Marriott.A manager stated to me that "A much younger associate was being crossed trained to replace me".I am a 41 year old male Front Office Supervisor. After I reported this to my Director I was terminated a week and a half later for reasons that were apart of my job.I work in the hospitality industry and I was documented in how I compensated a guest to which led to my termination.There are no previous documentations for my practice of compensation.An additional documentation I received was for allowing an associate to leave early after the Manager on duty already gave this associate permission to leave.I have contacted the EEOC and have been assigned a case worker and I await mediation.I believe I was retaliated against because of 2 reasons.I was on the FMLA and also for the age related comment by my manager and reporting it to the executive of my Department.

5:49 AM  
Anonymous Anonymous said...

I synpathize totally with everyone on this blog...I am a 40 yr old female who worked for HIlton Grand Vacations for 2 years and during the time of employment I experienced direct Sexual harrassment, hostile work environment and finally retaliation. I too have an open case with EEOC (for 2 years now) and added retaliation when I questioned my pay and they terminated me immediately after stating that my position had been eliminated. (gold figure!)

I just want to say that the mental anguish and energy it takes is worst than the abuse itself. But what frightens me is that over 12 other females have complained and no one including HR has done anything to protect them. Instead they go have drinks with the perp's.

My question to you all is how can I protect those that are still working and are told that if they speak up they will be fired. It seems as if HR has been bought out by the Director of Sales in the Direct Sales Department.

As for the person who is doing the sexual harrassment????? oh he's very protected and is currently sitting to the right of the DOS and HR Regional Director.

They worship the ground he walks on despite of the many many allegations including stalking allegations.

5:16 AM  
Anonymous Anonymous said...

I filed a complaint with eeoc 2 days before I was terminated from my job. I did often verbally (not in writing though) tell human resources that I was gonna file a complaint. Do I have a case of retaliation?

8:56 AM  
Anonymous Anonymous said...

Im in odd situation. I filed for workers compensation in february and at the same time I filed a Fair Labor Standard Act 29. On the day they cut a check for my wages the owner had asked me to take my tools home. Im on temporary total disability and its impossible for me to take my tools. I hired someone to do it for me within the hour. My question to you is, is it a legal termination when a mechanic has been told to take his tools out of the shop while having 2 cases pending? He told me in a rude rough tone. He also mentioned that I need to ask permission to step into the building.From my experience when a auto technician is asked to remove your belongings from the premises is an actuall termination. I know for a fact is very upset about paying $8,000 for this lawsuit and not having a mechanic on duty.

9:52 AM  
Blogger Mike said...

As a human rights advocate, too, Mary, it pains me keenly to see people suffering from discrimination and exploitation in their workplace. People should really be aware and assertive of their rights, especially when it comes to employment. One must know the right people within the business organization, and associate himself with them and create a team which is strong and professional enough to face the issues, of which will most likely concern the management. If I may add, seeking the advice of employment lawyers will also help. Our Ottawa employment lawyers here in Canada offers assistance in matters concerning employment problems.

7:46 PM  
Anonymous Anonymous said...

In my job I had problems with a few people under me (I was unit lead). After advising my direct supervisor of disrespectful & insabordanent employees, I was advised to overlook them as he explained they were young and had not been in the workplace long. There was even a situation where I went to my supervisor's boss to advise him of the situation. I explained to him what happened and he was only concerned with her work and not settling the problem. I asked him if all of us could sit down & discuss the problem but I was told he wasn't going to do so. I then went o HR and was advised to discuss it with the person I was having the problem with. A few months later I was no longer a lead and the person covering me when I was out, I was know covering her and I was advised if she asked me to do something I was to do it. I am grateful I still a job (not sure how long), but I know there was no reason I should have been moved out of my position. I had no hiring or firing authority, nor did I have the authority to do write ups, but I know the true reason I was moved out of my position. I did not act out as I am a professional black woman. I filed a demotion, discrimation & failure to promote (transfer) complaint and since have been discriminated against.

8:03 PM  
Anonymous Anonymous said...

First of all, thank you for providing a platform to both learn and to take action. I worked for a large manufacturing company in California, in which they set a climate for illegal activities and retaliation. This stretched from low level co-workers to Upper Management. I was awarded "Employee of the Month (July 2010): but when I reported illegal activities the retaliation began. I wasn't the first either. I was laid off,(claiming there was a slow down in production demand)this was in time with my complaints. When I left, I gave detailed accounts of the many incidents to my Recruiting Agency, but they weren' going to bite the hand that fed them. Consequently when I attempted to re-apply 2 months later, I was informed that my 2 of my co-workers submitted a complaint about me. That I was no longer able to work for this company. I had been in communication with my recruiter, her 0n-site Manager and her Corporate HR Manager,(out of state) and this was never mentioned until my re-hire attempt.When I asked the on-site Manger to get details of these charges, I waited 30 days for a response. This was: "The company would give me any details". Do I have any remedies besides an EDD complaint? I have photos, documentation, dates times, places and individuals involved. Please advise to: bobbyg_43@yahoo.com

Regards

1:56 PM  
Anonymous Anonymous said...

I have been working in this company for 2 year with a verifiable record of top performance. I worked with this employee on another contract and this person was my boss. I then moved and came back and hired this employee as my #2 in the begining everything was ok and then an implosion occured were the employee began making accusations agaisnt me. I'm now involved in a harrassment, intimidation and retaliation issue. This was to be unsubstantiated but my name has been tarnished and the perception is I am a "demon manager". The indivdual supporting her accusation has a social involement with her during off duty hours where they spend hours of playing games and talking about issues concerning on job activities. They both are of the same race where I am not. I don't believe race is the issue here but if you look at the overall complaint lodged it was directed toward minorities only. Just recently the employee used abusive language toward me in front of other employees. I had already left the area but was told about immedialety afterward. I immediately told HR about this issue and next thing I know I was put on the torture rack and it made me feel like I was wrong for wanting personnel to use a little common sense. Without giving away my identity I work in the Customer Service area. My main concern is ensuring the customer is being taken care of holding meetings, being on computers during peak hours of service is an uncommon practice to me. Once those doors are open it's all about the customer. Now this employee has some issue and the trust has been jeopardized. My only question would be how do you go forward with an employee whom shows no loyalty toward you?

9:31 PM  
Anonymous Anonymous said...

I work at a local insurance company, as an HR Supervisor. January 2011 a Lawyer from the Legal Department was promoted to Director. In my organization HR reports to legal.
We are a small department of seven. I’ve been with this company for 10 years and during that time we have only had three Black team members. The other two are now gone, due to unfair treatment. Now I feel it is my turn.

With the new Director in place, I found myself feeling pushed out of the picture. All he was interested in was accomplishing his priorities, no matter what it took. He never listened to feedback, just insisted he was right. In July he came to me and asked for a report to provide to Representatives of a past employee who filed discrimination charges. The report was to list the hiring managers for positions that the employee applied but, was not chosen. I created the report and reviewed it with him. He became agitated and annoyed when he say his wife’s name on the report. (she is a manager in the company) He said she was not the hiring manager, I said she was the one making the hiring decision on her positions. He said you need to take her name off and any other second line hiring managers. I said, I don’t think that is right. It is an investigation and you will be providing inaccurate information. He got annoyed and said just send it to me. I know that meant he would fix it.

In July of last year I became ill and was out of work for six weeks. Up until that moment my performance was rated Outstanding, and my opinion was always valued. When I returned I had to figure out what was done and what wasn’t done. What reports were up to date or not, etc.. I was told everything was going well, and I was doing a great job. I was given my mid-year performance conference in November. No concerns about my performance were mentioned. I was told by my boss and his boss that I was doing well. Than I should keep up the good work.

I was given four assignments to document processes during the first quarter. Weekly meetings with my supervisor are few and far between. It appears to me that my meetings were not important. I feel he is purposely delaying progress on my assignments. I cannot move forward until he reviews the updates.

Each year employees are asked to complete a employee survey. I completed the survey and answered questions appropriately. Asked if my manager asked me to do something unethical, I said yes. When results surfaced, the investigation started. I admitted to the response and brought his attention to the report in July. I felt he was abusing his power and also has a conflict of interest. He was furious.

That was not the end of it, now it is time for the annual performance review. I have never received a rating of Satisfactory. I’ve been consistently rated as Outstanding and Full Performance. To be rated as Satisfactory is the absolute worst. It is humiliating and degrading. A rating of Satisfactory puts me on a black list. HR has new employees who have been in the office for less than 6 months--they are now rated as Outstanding. In addition to the poor rating, I was told my title would be changed and that I need to meet expectation set for 2012. I’ve been given pages and pages of items to respond to and provide documentation for. Data I usually prepare is now prepared by them where they now manipulate my numbers for unfavorable results.

The management HR department has a habit of terminating minority females. If they are successful, I will be the third in less than 5 years. I need help, can someone point me in the right direction!

4:44 AM  

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