The purpose of this post is to provide a brief overview of how employees are protected from retaliation as well as how the new Equal Employment Opportunity Commission (“EEOC”) enforcement guidance now provides even broader protection to employees.
At the end of this post, I have included a “Top 10 List” of conduct which is protected under the law. If you believe you have been retaliated against, the Ohio retaliation attorneys at Bryant Legal, LLC can make sure your rights are protected and asserted effectively.
Are You Protected from Retaliation under Federal and Ohio law? Yes.
If you, as an employee, engage in certain activity at work, it may be protected under federal and Ohio law. If your employer takes disciplinary action against you because you either opposed discrimination (or other conduct you believe to be unlawful) or participate in any manner in an investigation, proceeding, or hearing regarding the discrimination, it will likely be unlawful retaliation.
A. What is “Protected Activity?”
Federal and Ohio law have anti-retaliation provisions so that employees can be free from discipline and not discouraged from opposing discrimination in the workplace. It is important to understand the two major types of activity that provide employees with protection (“protected activity”). These anti-retaliation provisions protect two main types of activity: (1) participation; and (2) opposition.
- (1) Participation is defined as follows:
- An individual is protected from retaliation for having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, the ADEA, the EPA, the ADA, the Rehabilitation Act, or GINA. Participation may include, for example, filing or serving as a witness in an administrative proceeding or lawsuit alleging discrimination.
- (2) Opposition is defined as follows:
- An individual is protected from retaliation for opposing any practice made unlawful under the EEO laws. Protected “opposition” activity broadly includes the many ways in which an individual may communicate explicitly or implicitly opposition to perceived employment discrimination. The manner of opposition must be reasonable, and the opposition must be based on a reasonable good faith belief that the conduct opposed is, or could become, unlawful.
B. Can My Employer Retaliate Against Me? No.
Many employment laws, whether they are under federal or Ohio law, have provisions which prohibit retaliation against their employees. Importantly, any employee, regardless of his or her status, has a private cause of action if he or she experiences retaliation.
Although each situation is different, your employer cannot retaliate against you. For example, if you oppose discrimination in the workplace (based on your reasonable belief) and your employer takes disciplinary action against you (e.g. write-ups, reduction of hours, termination, etc.), it may constitute unlawful retaliation. As you can imagine, retaliation can occur against employees in a variety of situations and in all aspects of employment.
C. New EEOC Enforcement Guidance Broadens Protection for Employees
Recently, the Equal Employment Opportunity Commission (“EEOC”) issued its new enforcement guidance for claims of retaliation under laws such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA). Topics explained in the new guidance include:
- The scope of employee activity protected by the law.
- Legal analysis to be used to determine if evidence supports a claim of retaliation.
- Remedies available for retaliation.
- Rules against interference with the exercise of rights under the ADA.
- Detailed examples of employer actions that may constitute retaliation.
With respect to examples of employer actions that may constitute retaliation, a non-exhaustive list of actions that constitute protected activity by the employee is below.
Top 10 List of Protected Activity:
- Complaining about discrimination against oneself or others
- Threatening to complain about discrimination against oneself or others
- Providing information in an employer’s investigation of discrimination or harassment
- Refusing to obey an order reasonably believed to be discriminatory
- “Passive resistance” – e.g. supervisor refusing a request to dissuade subordinates from filing EEO complaints. Just not acting on the request is considered protected.
- Advising an employer on EEO compliance
- Resisting harassing behavior – The EEOC gives the example of an employee telling a supervisor to “leave me alone” and “stop it.” The fact that it’s a supervisor seems important here because the supervisor’s knowledge is imputed to the employer.
- Intervening to protect others from harassing behavior – Again, the EEOC example involves a co-worker intervening to stop harassment by a supervisor.
- Requesting accommodation for a disability or religion
- Complaining that pay practices are discriminatory – There doesn’t need to be an explicit reference to discrimination. If a woman says her pay is unfair and asks what men in the job are being paid, the EEOC deems that protected.
If you have questions about retaliation and/or have been retaliated against by your employer, you should contact an employment attorney at Bryant Legal, LLC to help make sure your rights are protected and asserted appropriately.