An employer may not fire, demote, harass or otherwise “retaliate” against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.
Commonly Asked Questions
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 EEOC 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.
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.
In addition to the protections against retaliation that are included in all of the laws enforced by the Equal Employment Opportunity Commission (EEOC), the Americans with Disabilities Act (ADA) also protects disabled individuals from coercion, intimidation, threat, harassment, or interference in their exercise of their own rights, or their encouragement of someone else’s exercise of rights granted by the ADA.
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.
Opposition to a practice believed to be unlawful discrimination is protected activity. “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 complaint 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 also protects an employee from retaliation. “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 EEOC investigation or litigation.
A protected activity can also include requesting a reasonable accommodation based on religion or disability.
Talk to your supervisor or a human resource representative about the negative acts. Ask specific questions. Point out that the negative action took place after you complained, and ask that it stop immediately.
Case of Retaliation
If you are being retaliated and your employer won’t correct the action, you will need to show a link between your complaint and the employer's retaliatory behaviour. The more specific evidence, the better.The more specific evidence, the better.
Document the retaliatory behavior. Keep track of a timeline of events prior to making a complaint, and after. Be sure to keep documents showing your good work performance prior to making the complaint.