What is Retaliation?

Retaliation in the workplace is described as adverse treatment, such as wrongful termination, by an employer to an employee who reports or files a claim for workplace harassment or discrimination.

Title VII of the Civil Rights Act prohibits employers from discriminating against workers over protected characteristics such as their race, gender, religion, age, national origin, disability, or pregnancy. The federal Equal Employment Opportunity Commission (EEOC) is responsible for investigating complaints of workplace discrimination.

The EEOC can only take action against an employer if it knows that a violation of someone’s rights has occurred. The EEOC relies on workers to report instances of discrimination, either against themselves or against co-workers. Once a complaint is filed, an employer is required to conduct an investigation. This can be done internally or the employer can hire an attorney to conduct independent investigation.

You Are Protected if you Report a Violation

If you believe you’re being discriminated against because of a protected characteristic, you can file a “Charge of Discrimination” with the EEOC and they will investigate the allegations. If you file a Charge of Discrimination, Title VII prohibits your employer from retaliating against you because you took action.

Your employer can’t fire you, bully you, withhold or decrease your pay, or otherwise intimidate you for taking steps to protect your rights. Such treatment would be considered an “Adverse Employment Action,” and could be considered retaliation.  Title VII also protects you against retaliation if you make a claim of discrimination on behalf of a co-worker who might be too afraid to come forward.

The EEOC Will also Investigate Claims of Retaliation

If your employer would take an adverse action for filing a Charge of Discrimination with the EEOC, the EEOC would treat the retaliation charge as a separate claim from the original act of discrimination.  Therefore, if your employer retaliates you’ll be dealing with two cases. As an example, if you complain that your employer is discriminating against you because you are pregnant, the EEOC will investigate this charge. If your employer receives notice of the charge, and then wrongfully terminates you, or begins to make your job more difficult because you made the complaint, you would file an additional charge with the EEOC, who would then also investigate the claim of retaliation.

Can the EEOC Help You Resolve Your Claim?

In an effort to resolve a charge of discrimination, if both parties agree, the EEOC might send you and your employer to mediation to try to reach a resolution.

If that fails, or if one party refuses to go to mediation, the EEOC will assign an investigator to look into your claim. If the investigator believes your employer is guilty of discrimination, the EEOC might try to reach a settlement that both parties can agree to. If settlement efforts fail, the EEOC could file its own lawsuit against your employer, asking the court to order penalties.  However, more often than not, the EEOC will issue you a “Right To Sue” letter.  In this letter the EEOC will state whether or not they were able to substantiate the Charge of Discrimination or Retaliation.  Upon receipt of the Right to Sue Letter, you have 90 days in which to file a lawsuit directly against your employer.  If you fail to sue them within 90 days of receipt of the letter, you waive your right to take further action against your employer, and your rights may be lost.

If you believe you may be the victim of discrimination, or victim of retaliation for making a claim of discrimination, it is important to discuss your situation with an experienced employment lawyer who can explain your rights to you.  In most cases, the employer will have to pay your attorney’s fees if you can prove discrimination, and therefore there is no cost for making a claim.


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