What Is Retaliation?
In the context of a federal workplace, and as defined by the U.S. Equal Employment Opportunity Commission (EEOC), EEO retaliation occurs when an employer punishes, penalizes, or retaliates against an employee who participates in an EEO-protected activity, such as participating in an EEO process or “reasonably opposing conduct made unlawful by an EEO law.”
Retaliation is particularly insidious because it often silences the employee who speaks 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.
For a consultation with our experienced federal EEOC lawyers, please contact us online or call (800) 801-0598 today.
Formal Retaliation
Retaliation takes many forms, with some being more covert than others. More formal examples of retaliation in the workplace can include the following actions taken by an employer:
Demotion
As you know, federal employees work hard to fulfill the individual occupational requirements for the occupational series in which they work.
If, after you engage or contemplate engaging in an EEO-protected activity, your employer moves you to a position that is in a lower occupational series, provides fewer benefits, or involves less responsibility, you are likely a target of discriminatory retaliation.
Docked Wages
Any reduction in your wages that is motivated by your protected activities is retaliation. This can happen in obvious ways, such as a reduction of your pay rate. Retaliation through docked wages can also occur in subtler ways, such as a reduction of benefits or an employer’s uncommon refusal to approve overtime work.
Reduction of Hours
An employer might let its bias against you show by reducing the amount of time you spend working and, consequently, decreasing the amount of pay you receive. Whether the difference in your working time is by hours, weeks, or months, if you notice a substantial change after participating in an EEO-protected activity, you may have a retaliation claim.
Reassignment
Not every unlawful, retaliatory action of your employer has to affect your pay or stature within a department. An undesirable job assignment can be a go-to form of discriminatory punishment. Many employees unfairly experience the misery of being forced to perform the same work from a new and undesirable location or for a new and unwanted project or team.
Changing of Work Schedule
Any adverse change in the terms or conditions of your work can be an unlawful, retaliatory action, including a difference in your work schedule. If you have to work on undesirable days, or you have to work earlier, later, or longer hours than usual after taking a protected action, the change could be a violation of your rights.
Denying a Promotion or Pay Raise
While an employer is not obligated to promote you or increase your pay, an employer that blocks your professional advancement could be held accountable under the law.
Take a look at whether you were qualified for any promotions or raises you did not receive. You should also look at whether those who are less qualified than you were promoted to positions you wanted or were given the raises you sought.
If you notice others with less skill, experience, or education are advancing past you, it might be retaliation. And if you regularly advanced at work until you engaged in protected activity, that could be a sign of retaliation.
Termination
Termination after participating in EEO-protected activity and without committing misconduct is a classic example of workplace retaliation. However, not all illegal firings are obvious. If you resign from your job, you could still have been a victim of unlawful termination.
Under the theory of constructive discharge, your employer engages in unlawful discrimination if your employer makes your work experience so untenable that it is reasonable for you to quit. To constructively discharge their employees, many employers utilize the informal retaliation tactics we have listed below.
Featured Case Result
WHAT HAPPENED: We negotiated a $100,000 settlement for the Complainant’s claims of discrimination based on race and retaliation as well as the rescission of removal by the agency at a Disciplinary Appeals Board.
Informal Retaliation
Whether you separate from your employer or remain in your position after experiencing informal retaliation, you have a legal right to complain. More informal examples of workplace retaliation can include:
Social Isolation
Have you noticed that you are no longer a part of meetings or group projects at work? Do coworkers no longer speak to you? Has your employer moved your work area to a location where it is more difficult to interact with others? These circumstances at work can be retaliation in the form of social isolation. If you are excluded from work opportunities or the rest of the working community (either literally or figuratively) because you asserted their rights, your employer is committing unlawful retaliation.
Harassment, Including Bullying, Intimidation, Threats, and Verbal Abuse
Bullying, threats, verbal abuse, and intimidation all fall under the umbrella of harassment.
Retaliatory harassment occurs when:
- To keep your job or receive work benefits, you have had to endure unwelcome conduct motivated by your EEO-protected activities; or
- You have had to endure unwelcome conduct that is so extreme or pervasive that a reasonable person would call your workplace a hostile environment.
This harassment may come in the form of jokes, insults, stereotyping, threats against you or your job, offensive gestures, or other offensive behavior.
Other Forms of Retaliation
Other ways EEO retaliation occurs are include 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 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; and
- 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 anti-discrimination law and per se interference with the EEO process.
If managers or supervisors make comments that are likely to inhibit an employee’s or their coworker’s desire to engage in an EEO activity, it may be considered by the EEOC as a per se violation of anti-discrimination 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 EEOC, 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 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 or call (800) 801-0598 to discuss your case with one of our lawyers.
Eric L. Pines is a nationally recognized federal employment lawyer, mediator, and attorney business coach. He represents federal employees and acts as in-house counsel for over fifty thousand federal employees through his work as a federal employee labor union representative.
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