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Retaliation by Employers: Guidance from the EEOC

The U.S. Equal Employment Opportunity Commission (EEOC) is charged with the enforcement of Federal laws that prohibit discrimination by employers against employees and those seeking employment. The types of discrimination that are covered under these laws include discrimination due to race, color, origin, sex, equal pay, pregnancy, sexual harassment, genetic information, age, disability, religion and retaliation.

The EEOC’s published data shows that retaliation is the most common issue faced by Federal employees, making up nearly half of all complaints filed.

In August 2016, the EEOC issued enforcement guidance providing its interpretation of the laws on retaliation. At a high level, the laws that exist to protect individuals from discrimination also protect individuals from retaliation by employers when those individuals seek to assert their rights under the laws.

The following highlights several key points from the EEOC guidance. Please note this is not intended to be a comprehensive summary of the law.

  • Employers are prohibited from taking materially adverse action against any employee, applicant or former employee who files a discrimination complaint, serves as a witness to such a complaint or otherwise asserts rights that are protected by equal employment opportunity laws.
  • Actions by employers can vary widely and should be judged on a case by case basis as to whether they breach the materiality threshold of adverse action. Such actions may include but are not limited to:
    • Firing
    • Not hiring
    • Not promoting
    • Demoting or removing responsibilities
    • Transferring to less desirable position or location
    • Poor evaluations or reviews
    • Verbal or physical abuse
    • Initiating civil complaint
    • Initiating action with immigration authorities
    • Taking any of these actions against a family member
    • Threatening to take any of these actions
  • Employers are prohibited from stopping or discouraging employees from participating in an equal employment opportunity complaint or the investigation of such complaint.
  • The laws also protect employees when the discrimination complaint concerns other employees and not themselves.
  • With specific regard to disability rights under the Americans with Disabilities Act (ADA), there is a further threshold known as “interference” with an individual’s statutory ADA rights. Interference is broader than retaliation and can cover such actions as coercion and intimidation by an employer against an employee that would adversely impact or deny accommodations to which the employee is entitled under the ADA.

Contact a Long Island Employment Discrimination Lawyer Today

If you believe you are facing retaliation from your employer related to an equal employment opportunity violation, please call Law Office of Cohen & Jaffe, LLP today for a free consultation with an experienced employment attorney at (516) 358-6900.

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