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Avoiding Retaliation

Anyone involved in discrimination complaints and investigations should be free to make complaints, participate in interviews, oppose a claim, and provide information to investigators or public agencies without fear of reprisal by their employer. Despite prohibitions against employer retaliation, a significant portion of discrimination claims filed with public enforcement agencies include a retaliation claim.

Unlawful retaliation can occur against someone involved in complaint activity even when the underlying conduct did not constitute harassment or discrimination.

Unlawful Retaliatory Action can include:

  • Demotion
  • Cut in pay or hours
  • Change in benefits of employment
  • Change in worksite or location
  • Change in assignment to one less favorable
  • Discharge or Discipline without cause

Depending on the facts, if an employee has engaged in protected activity, an employer could commit unlawful retaliation if it then:

  • reprimands the employee or gives a performance evaluation that is lower than it should be;
  • transfers the employee to a less desirable position;
  • engages in verbal or physical abuse;
  • threatens to make, or actually makes reports to authorities (such as reporting immigration status or contacting the police);
  • increases scrutiny;
  • spreads false rumors, treat a family member negatively (for example, cancel a contract with the person's spouse); or
  • makes the person's work more difficult (for example, punishing an employee for an EEO complaint by purposefully changing his work schedule to conflict with family responsibilities).

Most importantly, an employer should not do anything in response to protected activity that would discourage someone from resisting or complaining about future discrimination.

Managers need to ensure that applicants, employees, and former employees are not punished for reporting possible discrimination, participating in a discrimination investigation or lawsuit, or opposing discrimination (for example, threatening to file a discrimination complaint).

Retaliation is not only illegal, it's also bad for business. It is in an employer’s best interest for employees to feel comfortable reporting discrimination, so that employers can investigate and address any conduct that violates the law or internal policies.

See also our sections on Retaliation  and  Preventing Retaliation Best Practices.