While the manager had the discretion to allocate the use of the vehicle and other "perks," retaliation can be established if it is shown to be more likely than not that the discretionary decision was based upon a retaliatory motive. In this case, the manager's reaction to the employee's EEO complaint was to take away a perk (i.e., use of the government car), while another coworker was allowed continued use of the vehicle. In another example, EEOC found retaliation partly based on the fact that the employee was refused use of a government vehicle. EEOC found that the selection process was tainted by retaliatory conduct and ordered the agency to promote the employee. A witness reported that he had heard the manager make the statement, "I don't get mad, I get even" in reference to employees who make discrimination claims. Two of the three interview panelists were managers involved in current or previous EEO complaints by the employee and one of the panelists attempted to influence the selection process by asking a question that paralleled a previous conflict between the panelist and the employee. Similarly, another recent case involved an employee who claimed that she was discriminated against during the promotional interview process. The EEOC found that the statements made during the reference check were retaliatory and further that the EEO information placed in the employee's personnel file was unnecessary and hindered her promotional opportunities. The employee learned that her manager had placed information about the previous EEO proceedings in her personnel file and communicated that the employee had filed several complaints when contacted for reference checks. In a recent case, an employee who had filed several unsuccessful EEO complaints, subsequently sought promotions within the organization. The standard for proving a retaliation claim requires showing that the manager's action might deter a reasonable person from opposing discrimination or participating in the EEOC complaint process.Įxamples from past cases provide instructive illustrations of typical retaliatory behavior: This is particularly apparent with retaliation law because the legal standard requires an examination of the behavior after the allegation. It is obvious that the cause and effect of interpersonal conflicts can potentially implicate a legal process. Thus, EEO practitioners must work diligently with managers to ensure that retaliation is not permitted in the workplace. If retaliation for such activities were permitted, it would have a chilling effect upon the willingness of individuals to speak out against employment discrimination or to participate in the EEOC's administrative process or other employment discrimination proceedings. It is important to understand how retaliation manifests and to prevent it from occurring. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, disability and genetic information also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding. What is Retaliation and Why It Matters?Ī manager may not fire, demote, harass or otherwise "retaliate" against an individual for filing a complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The desire to retaliate is a common human reaction, but when done by a management official because employees assert their right to challenge a perceived wrong, the retaliation can establish legal liability. Why is this so common? Why does a situation move from an unproven/unsubstantiated allegation to a later violation based on the manager's response to the employee initiating a complaint? The simple answer is that individuals often seek to avenge a perceived offense. In a large number of these cases, it is common for an original discrimination allegation (on a basis other than retaliation) fail to establish a violation of the law, but the subsequent retaliation allegation results in a discrimination finding. % of Findings of Discrimination Based on RetaliationĮEOC's Annual Report on the Federal Work Force 2009-2013 and EEOC No Fear Data for FY 2009-2013
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