It’s common knowledge that laws protect employees from – and punish employers for – various types of discrimination. For example, Title VII of the Civil Rights Act of 1964 prohibits discrimination (including harassment) based on characteristics such as race, sex, national origin, and ethnicity, whereas the Age Discrimination in Employment Act and the Americans With Disabilities Act provide similar employee protections with regard to age and disability, respectively. (Each of those federal statutes applies only to businesses with a certain minimum number of employees, but states generally enact their own versions that apply to all employers and might be more stringent.) While business owners tend to have at least some awareness of such provisions, my experience is that many are ignorant of the “other” important component of these civil rights statutes: the anti-retaliation provisions. In some respects, the anti-retaliation provisions are more dangerous to them.
In short, some employers respond to discrimination complaints by making life exceedingly difficult for the complainants and the workplace allies who corroborate the complaints. A complaining party might, for example, suddenly start receiving poor written evaluations, suffer a demotion, get excluded from important assignments, or lose his/her job for supposed “performance” deficiencies that no one had previously noticed. An employer that responds this way might (i) believe that it’s creating a good “paper trail” to rebut the discrimination claims (by demonstrating that the complainant is a “poor employee,” has attitude problems, etc.); (ii) be trying to coax the employee into “voluntarily” quitting; or (iii) be responding out spite, hurt feelings, or honest belief that the employee is a troublemaker who brought the discrimination complaint in bad faith. If so, bad move.
Even aside from the moral and ethical issues raised by such conduct, an employer who retaliates usually would be committing a separate violation of the applicable civil rights law. For example, Title VII contains the following language:
- It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a). Thus, the retaliating employer would now face both the original claim of, say, racial discrimination, and a new claim of unlawful retaliation.
But, you might ask, may a business retaliate against an employee whose original discrimination claim completely lacked merit? That is, what if it’s clear that there was no actual discrimination based on race, gender, or some other inherent characteristic? The answer is simple: it doesn’t matter. Note, for example, that section 2000e-3(a) of Title VII protects, among others, the employee who “has made a charge, testified, assisted, or participated in an investigation, proceeding, or hearing . . . .” There is no requirement that the actual discrimination charge have merit.
In fact, discrimination claims can be difficult to prove, as the employee usually must demonstrate not only that the employer engaged in certain harmful conduct, but also that that conduct was based on a protected trait such as race or gender. Retaliation, however, is much easier to spot – as it often is a fairly obvious response to the original discrimination complaint. Accordingly, the post-complaint response could create liability where it otherwise didn’t exist.
If you’re a business owner facing a discrimination charge, don’t make it worse. Don’t retaliate.