Reporting Harassment

According to the EEOC, an employer should make clear that it will not tolerate adverse treatment of employees because they report harassment or provide information related to such complaints. An anti- harassment policy and complaint procedure will not be effective without such an assurance.

Management should undertake whatever measures are necessary to ensure that retaliation does not occur. For example, when management investigates a complaint of harassment, the official who interviews the parties and witnesses should remind these individuals about the prohibition against retaliation.

Management also should scrutinize employment decisions affecting the complainant and witnesses during and after the investigation to ensure that such decisions are not based on retaliatory motives.

So, if you have reported harassment or some other form of illegal misconduct, the onus is on your employer to ensure that you are not subjected to retaliation because you’ve spoken up about mistreatment. This means that management should warn those you are making complaints about, as well as other staff being interviewed as material witnesses, that you are not to be targeted in any way shape or form for making a complaint. Your employer’s anti-harassment and anti-retaliation policies should be sent in reminder emails to ALL STAFF—periodically—but, particularly after an incident of potential harassment has been reported.

Your employer should not name you or call you out in any communication being sent to all staff. Employees that are serving as witnesses should be warned not to repeat anything that is discussed during an investigation of harassment. Steps should be taken to shut down the rumor mill—before it gets started!

If an employee has made a complaint of harassment and someone with authority to recommend employment actions makes a sudden recommendation to suspend or to demote or to fire, etc. that employee, the employer should automatically question the employment recommendation to determine if the motivation is legitimate or simply a pretext to fire the employee for making a complaint. Employers should not simply take the word of a supervisor, etc., when they are aware that the supervisor is recommending action that could be intentionally retaliatory, may be meant to scare the employee out of opposing illegal mistreatment, and may be meant to intimidate other employees in order to prevent them from opposing illegal mistreatment or from participating in an investigation against the company.

Employers can’t claim deniability by blaming a supervisor for taking action against an employee as though the supervisor were a rogue employee of the company. Supervisors rely on the authority given to them by management and can’t execute a vendetta or any adverse actions without cooperation or intentional ignorance from higher up within the company. The law will not diminish the responsibility of employers to examine all employment actions, particularly against employees that have opposed mistreatment.

Heightened Scrutiny and Increased Surveillance

If you file a complaint of discrimination, harassment, retaliation, etc. against your employer, your employer may respond by producing what appears to be evidence of a legitimate, nondiscriminatory reason for whatever employment action was taken against you. However, legally, a violation would still be found if the explanation provided by your employer is a pretext designed to hide the true retaliatory motive.

Typically, pretext is proved through evidence that an employer treated a complainant differently from similarly situated employees or that the employer's explanation for an adverse action is not believable. An adverse action is any action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding.

If you have complained/opposed discrimination, etc. in the workplace, you want to begin tracking and documenting your employer’s pretext(s) by exposing how the so-called legitimate evidence is nothing more than a cover story to justify the real reason they are targeting you—discrimination, etc.

One way you can show pretext is to show that your employer subjected your work performance to heightened scrutiny/increased observation after you engaged in protected activity (e.g., by opposing discriminatory practices, participating in a discrimination proceeding, etc.)

I can give you examples of my experience with heightened scrutiny and increased surveillance. After my former employer was found guilty of retaliating against a Black manager, they came after me for providing truthful testimony about what I heard and witnessed being said and done to the Black manager. I was denied a promotion, denied a justified transfer to take on a new career path for which I was working and received training, and I was subjected to heightened scrutiny and increased surveillance. A couple of weeks after my employers were found guilty of retaliation, I suddenly started hearing about everything that was supposedly being “noticed” or I was told about how things “appeared”. For instance:

-- I was told that people were noticing my hours in and out of the office and that everyone was suddenly questioning my hours. But, my employer wouldn’t accuse me of time sheet fraud, missing deadlines, etc., which would result from an employee not being at work or working shortened days;

--I was suddenly told that everyone questioned if I was really doing work, when I took assignments home. It was stated, “We see you taking things home, but even managers wonder if you really do anything, when you get there.”

--I was suddenly told that all of my emails read “defensively,” with no examples provided and no justification for why this wasn’t a complaint in the previous 7 years I was working at the company;

--I was told that I appeared to be looking for another job; and

--I was told that I appeared to be unhappy and didn’t appear to like working in my department, etc.

Everything I did was scrutinized, pulled apart, and most of it was documented as alleged performance deficiencies. Blanket statements were used to criticize me with no supporting documentation, etc.

So, one of my positions--in my defense to an outside investigating organization--was that I had participated in protected activity (assisting a discrimination investigation) and as a result I was subjected to heightened scrutiny, along with threats to my job security, intimidation, etc.

So, as you fight The Black Factor at work, always think about exposing pretext, the supposedly legitimate reasons why your employer targeted you with some employment action (termination, denial of promotion, suspension, demotion, etc.). If you are the victim of false employment actions and your employer needs to cover it up, they will begin watching you and documenting whatever they think they can use against you.

Think about the levels of heightened scrutiny and increased surveillance that you are being subjected to compared to other similarly situated employees.

Opposition to Discriminatory Practices

According to the EEOC, protected activity includes opposition to a practice that is believed to be unlawful discrimination. Opposition can be shown simply by 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.

The anti-retaliation provisions make it unlawful to discriminate against an individual because s/he has opposed any practice made unlawful under the employment discrimination statutes. This protection applies if an individual explicitly or implicitly communicates to his or her employer or other covered entity a belief that its activity constitutes a form of employment discrimination that is covered by any of the statutes enforced by the EEOC.

Because individuals often may not know the specific requirements of the anti-discrimination laws enforced by the EEOC, they may make broad or ambiguous complaints of unfair treatment. Such a protest is protected opposition if the complaint would reasonably have been interpreted as opposition to employment discrimination.