An individual is protected from retaliation for engaging in protected activity, which includes:
- Opposing a practice made unlawful by one of the EEO statutes.
- Filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statute (regardless of the validity or reasonableness of the original allegation of discrimination)
- individuals testifying or presenting evidence as part of an internal investigation
- individuals not members of the protected class subjected to discrimination (e.g., a white individual may allege that he was retaliated against for opposing discrimination against African-Americans)
- individuals associated with a protected individual
- The American with Disabilities Act prohibits retaliation against an individual for opposition to any violation of the statute, not just employment discrimination, including state and local government services, public accommodations, commercial facilities, and telecommunications.
The anti-retaliation provisions prohibit ANY adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.
Complaints of reprisal are not at all uncommon and any manager that makes a decision adverse to an employee subsequent to some protected activity by that employee runs the risk that a complaint of reprisal will follow.
To prove reprisal
A complainant only needs to show:
- That he/she opposed unlawful employment practices or participated in Title VII proceedings.
- That his/her employer was aware of her protected activity.
- That subsequently his/her employer took adverse action against him/her
- The adverse action followed his/her protected activity within such period of time that retaliatory motive can be inferred.
Three Essential Elements
- Protected activity - opposition to discrimination or participation in the statutory complaint process
- Adverse action
- Causal connection between the protected activity and the adverse action
It does not matter how an employee participates in the EEO process; it is the participation itself that is protected.
The fact that an employee has previously filed an EEO complaint DOES NOT prevent management from legitimately dealing with the employee on conduct-related matters.
Employees are allowed official time to participate in the EEO process, including those who are serving as a representative for the complainant. Denial of official time may be considered reprisal and EEO HQ will request a denial in writing.
When an agency fails to take prompt and effective action in response to a complaint of sexual harassment, it may be liable for the resulting hostile environment. That same failure may also form the basis of a reprisal complaint.
When in doubt, call your local EEO counselor or Headquarters EEO.