What Is Retaliation?
In the context of a federal workplace, and as defined by the U.S. Equal Employment Opportunity Commission, EEO retaliation is when an employer punishes, penalizes, or retaliates against an employee who participates in a EEO protected activity, such as participating in an EEO process or “reasonably opposing conduct made unlawful by an EEO law.” Retaliation is particularly insidious in that it often silences the employee who spoke up and discourages others from doing the same. Retaliation can occur in both formal and informal ways and can create a culture of fear in the workplace.
More formal examples of retaliation in the workplace can include:
- Docked wages
- Reduction of hours
- Changing of work schedule
- Denying a promotion or pay raise
More informal examples of workplace retaliation can include:
- Social isolation
- Verbal abuse
Other ways EEO retaliation occurs are unfairly negative performance evaluations, changes in working conditions, and unnecessary or unfair criticism or scrutiny. No matter how retaliation occurs, it’s harmful and damaging to both the target and the workplace as a whole.
EEO Retaliation Laws & the Burlington Northern Case
In 2006, the U.S. Supreme Court heard the case Burlington Northern & Santa Fe Railway Co. v. White, 106 LRP 37559 , 126 S. Ct. 2405 (U.S. 2006) and resolved the question regarding what employer acts could be considered as retaliatory. In this case, the Supreme Court found that a complainant must demonstrate that “a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
According to the EEOC, the following three things must be met to prove a legal claim of retaliation:
- The complainant engaged in a prior protected activity
- The employer took a materially adverse action
- Retaliation caused the employer’s action
In addition to the aforementioned Burlington Northern case, the 2011 case, Williams v. Department of the Army, 111 LRP 34408, and the 2009 case, Vincent v. U.S. Postal Service, 109 LRP 51661, helped define per se violations of EEO antidiscrimination law and per se interference with the EEO process.
If managers or supervisors make comments that are likely to inhibit an employee or their coworker’s desire to engage in a EEO activity, it may be considered by the EEOC as a per se violation of antidiscrimination law. Even comments that express hurt regarding an EEO complaint or offering advice to an employee regarding the risks of filing an EEO complaint can be found unlawful. Additionally, proving a per se violation does not require a legal finding of intent.
Meanwhile, comments that can be found reasonably likely to discourage employees from taking part in EEO activities are considered per se interference with the EEO process. With these cases, it is irrelevant if the complainant is deterred or not from pursuing their EEO claim.
What Does Retaliation Look Like in the Federal Workplace?
Unfortunately, retaliation is all too common in federal workplaces. In fact, according to the EECO, retaliation is the number one alleged form of discrimination reported in the federal sector and the most common finding in federal sector discrimination cases.
Retaliation looks very similar in the federal workplace as in the corporate world. Full-time, part-time, temporary, and seasonal employees can all be victims of retaliation. It can even happen to applicants and former employees. Furthermore, retaliation does not just occur between managers and their direct reports. Supervisors, foremen, department heads, executives, and anyone in a managerial position or a position of power over the employee can be guilty of retaliation.
Reporting discrimination or discriminatory actions in the workplace is what is called a protected activity. Retaliation can occur both before or after a report has been made. For example, suppose an employer knows that an employee is planning to file a report. They may retaliate against that employee before the report is filed in an attempt to intimidate the employee from making the report.
What To Do If You Have Been a Victim of Retaliation
Federal employees have a right to work in a workplace free of discrimination and the fear of retaliation when discriminatory practices are reported. When retaliation occurs, everyone loses. If you were the victim of retaliation, you might be feeling isolated, overwhelmed, and scared. You are not alone in this, and you have options.
Do I Need Legal Representation?
When retaliation occurs, you may not know where to turn or who to go to for help. You may be afraid of losing your job or being on the receiving end of further retaliation. This is where a federal employment law attorney can help. If you have been the victim of EEO retaliation in the federal workplace, you have the right to file a complaint, and you may be able to seek compensation for the damages you incurred as a result of the retaliation. For example, clients have been awarded damages for lost wages due to missed work, compensation for emotional distress, and recovery of denied benefits. In some cases, we have also helped clients recover jobs from which they were fired.
At Pines Federal, we exclusively represent federal employees in EEO retaliation cases, and we can use our extensive experience to help you. Send us a message online to discuss your case with one of our lawyers.