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  • Writer's pictureKevin Crayon II

Employment EEO Retaliation

Updated: Jan 13, 2023

You sent management an email complaining about discrimination. The next day, management fires you. The reasons they gave for firing you are untruthful and seem to be motivated by your opposition to discrimination. You've just made out the essential elements of a retaliation case.

"EEO retaliation" or Title 7 retaliation refers to retaliation that the Equal Employment Opportunity Commission (EEOC) has jurisdiction to enforce, along with the the federal U.S. District Courts. This is often referred to as Title 7 (of the Civil Rights Act) retaliation, although similar anti-retaliation laws apply for disability and age.

For more information, refer to the EEOC's FAQ regarding retaliation. See the EEOC retaliation brochure. These resources do a great job at breaking down retaliation.

Additionally, view my retaliation video here:

Unless you have direct evidence of retaliation, you have to make a circumstantial case by proving four (4) essential elements: (1) you engaged in protected activity, (2) the person who retaliated was aware of your protected activity prior to retaliating, (3) the responsible person retaliated with an adverse action, (4) there is a nexus (or connection) to the protected activity and adverse action.

Many employees may not be able to satisfy these elements. Review my video here regarding mistakes that can be made in retaliation cases here:

After satisfying the four (4) elements above, management then has to articulate a legitimate non discriminatory reason for taking its action. Then you have to show that those reasons are mere pretext for discrimination.

1. Protected Activity

Beginning with the first element, protected activity, this includes the following:

  • filing or being a witness in an EEO charge, complaint, investigation, or lawsuit

  • communicating with a supervisor or manager about employment discrimination, including harassment

  • answering questions during an employer investigation of alleged harassment

  • refusing to follow orders that would result in discrimination

  • resisting sexual advances, or intervening to protect others

  • requesting accommodation of a disability or for a religious practice

  • asking managers or co-workers about salary information to uncover potentially discriminatory wages

  • Being associated with someone who engaged in these protected activities.

As you can see, for protected activity, just participating in "prior EEO activity" is not the only protected activity; it is any participation in discrimination-related complaints and opposition to discrimination, such as emails opposing discrimination. It can include reasonable accommodation requests based on disability or religion.

For the protected activity to be within the purview of EEO or Title 7 retaliation, the protected activity must concern one of the following protected classes:

  • Race

  • Color

  • National Origin

  • Sex

  • Religion

  • Genetics

  • Disability

  • Age

Therefore, complaining about harassment in general, mistreatment in general, or other possible motives for other possible non-discrimination/non-Title 7/non-EEO claims, such as whistleblowing, union activity, etc., does not qualify as protected activity under Title 7, the Rehabilitation Act, or Age in Employment Discrimination Act. The protected activity must be either reasonable accommodation requests for disability or religion, participation in discrimination proceedings, or opposition to discrimination (for yourself or others) based on a protected class.

2. Knowledge of your Protected Activity

Management or the retaliator must actually know about your protected activity to be motivated by it. The responsible person will usually deny being aware of protected activity. This is where witnesses, documents, emails, correspondence, recordings, and other evidence is needed to prove that the retaliator was aware of your protected activity described above. Without awareness, the retaliator could not possibly be motivated by activity he or she does not know exists.

3. Retaliatory Adverse Action

This step has to come after the retaliator was aware of your protected activity. This is for obvious reasons; he or she cannot retaliate based on protected activity if they do not know about the protected activity.

The issue as to what is an "adverse action" is often hotly litigated. In typical discrimination cases, only real and tangible personnel actions that materially affect the pay, terms, or conditions of employment qualify as an adverse action. A termination is an obvious example. For retaliation purposes, however, the action can be any action that has a "chilling effect." So, any mistreatment that happens because of protected activity could possibly suffice as being sufficient to dissuade a reasonable employee from filing a charge of discrimination.

4. Nexus (Connection)

There must be a connection between your prior protected activity so that it motivates the adverse action taken. This can be inferred by there being close timing (less than three months usually) between the retaliator being aware of your protected activity, and the actions taken. Nexus may also be established where the same person involved in the protected activity (such as a named harasser) is the same person retaliating. Nexus can also be established by other means, and it tends to be similar to your final task, proving pretext for discrimination.

Proving Pretext for Discrimination

Even if you satisfy Elements 1-4 above, the employer may articulate a seemingly legitimate non discriminatory reason for its actions. At that point, the burden shifts back to you to disprove and show their reasons are mere pretext for discrimination. This may be proven with the suspicious timing, contradictory statements, lies, credibility issues, disproving false reasons, showing that comments were made about your protected activity, that others were treated differently, and other ways to prove that the employer's articulated reasons are pretextual. I call this the rebuttal part of the case, and it's the most important.

The Takeaway

Proving retaliation is less challenging than proving discrimination that is based on other classes. Human nature is more likely to make person slip up and get revenge for those who file complaints or enforce their rights. Moreover, the adverse actions need only be "chilling" as opposed to "materially adverse." Even harassment that flows from retaliation has a less severe standard than hostile work environment based on other protected classes.

If you feel you've been retaliated against, ensure you are proving these essential elements of your case. Be sure to get the timeline correct and be able to pinpoint the evidence that supports your claim of retaliation.

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