The Equal Employment Opportunity Commission (“EEOC”) does not permit retaliation from employers. Therefore, the EEOC protects employees and applicants from facing negative consequences for reporting harassment or discrimination. This EEOC protection extends to reporting a coworker for harassment or discriminatory behavior.
What is Retaliation?
Retaliation occurs when an employer or manager takes a materially adverse action against an employee after the employee takes a protected action in the face of discrimination or harassment. This discrimination or harassment can be from a coworker, the employer, a manager, or a customer.
What Types of Activities are Retaliation?
Retaliation includes firing, demoting, or harassing an individual who takes a protected action. However, there are other activities that could be considered based on the context of an individual’s case. Therefore, the following situations could also be considered retaliation if taken after an employee takes a protected action:
- Transferring an employee to a less desirable position
- Increasing scrutiny of the employee
- Giving a performance evaluation that is lower than it should be
- Reprimanding the employee
- Threatening to make or actually making reports to the police or other authorities
- Making the person’s work more difficult such as by changing an employee’s work schedule to conflict with known responsibilities.
What Types of Activities are Protected from Retaliation?
Generally, protection extends to participating in an EEOC process or reasonably opposing unlawful conduct. But protected action can take many different forms. Consequently, it is also unlawful for an employer to retaliate against an employee for taking one of the following actions:
- Filing an EEOC charge, complaint, investigation, or lawsuit
- Participating as a witness in an EEOC charge, complain, investigation, or lawsuit
- Communicating with a supervisor or manager about discrimination or harassment
- Refusing to follow orders that would cause discrimination
- Requesting accommodations for a disability or religious belief
- Rebuffing sexual advances or intervening to protect others
- Asking managers or coworkers about salary information
Therefore, while all of these activities can be considered protected actions the context of a situation may allow for other activities to be included under the protected umbrella as well.
How Can Companies Help Prevent Retaliation After Reporting Coworkers?
The EEOC emphasizes that employers must consider the psychological and organizational characteristics that can contribute to the likelihood of retaliation. Additionally, the EEOC finds that factors such as a manager’s psychological traits, perceptions of the organization’s culture, and organizational opportunities can determine the likelihood of retaliation. Psychological factors that may indicate a likelihood of retaliation include the severity of the accusation, the impact of the accusation on an individual’s other work relationships, and the ability of the accusation to harm employability. However, organizational structures also must be considered. The EEOC indicates structures that lack administrative policies discouraging retaliation, authoritarian management culture, excessively hierarchical organizations, reward systems that promote competition, and the capacity to isolate the accuser are more likely to have retaliation issues.
How Can an Individual Prove a Retaliation Claim?
To prove an employee took a materially adverse action and thus retaliated because of a protected action an employee must show three things. Initially, the employee must show he or she engaged in a prior protected activity. Subsequently, the employee must show that the employer took a materially adverse action. Finally, the employee must show that retaliation caused the employer’s activity.
Get Legal Assistance For Retaliation
If you think you faced retaliation after reporting a coworker’s harassing or discriminatory actions, we can help. Further, we have extensive experience handling retaliation and whistleblower claims. At McOmber McOmber & Luber, we take a proactive approach to each and every legal issue our clients face. Please call our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800, or our Newark, New Jersey office at 973-787-9040 to find out more.