Of all the complaints received by the U.S. Equal Employment Opportunity Commission (EEOC), retaliation routinely tops the list. In Fiscal Year 2020, the agency fielded 67,448 charges, of which retaliation totaled 37,632, or 55.8 percent.
Federal laws, beginning with the Civil Rights Act of 1964, have created not only protected classes – sex, national origin, religion, age, pregnancy status, and many others – but also protected activities. Asserting one’s rights as an employee under federal law is considered a protected activity, whether it be protesting discrimination or harassment at work, or simply enquiring about coworkers’ pay to determine whether wage discrimination exists.
The Occupational Safety and Health Administration (OSHA) also investigates charges of retaliation against employees who report workplace safety or health violations, or who blow the whistle on employer violations of 22 specific “whistleblower” laws.
If you feel you’ve been retaliated against at work for something you did that was protected by federal statutes and regulations in the Dayton, Cincinnati, and Columbus areas of Ohio, contact the employment law attorneys at Duwel Law.
Likewise, if you’re an employer facing a charge of retaliation by an employee, you can rely on the 50-plus years of experience by the attorneys at Duwel Law to build a strong defense.
According to the EEOC, retaliation occurs when an employer takes a “materially adverse action” against an employee for participating in a protected activity by asserting their EEO rights, or for opposing conduct made illegal by EEO law, including discrimination and harassment.
A protected activity could include any of the following (plus more):
Informing a manager or supervisor of incidents of discrimination or harassment in the workplace
Filing a charge with the EEOC or participating in an EEOC investigation or lawsuit
Refusing to follow orders that would result in discrimination
Resisting sexual advances or intervening when others are sexually harassed
Requesting accommodation for a disability or religious practice
Asking managers or coworkers about salary information to uncover potential wage discrimination
OSHA adds other examples:
Raising a concern about a workplace condition or activity that could have an adverse impact on the safety, health, or well-being of the reporting employee, other workers, or the public
Reporting a suspected violation of law
Reporting an injury or being dissuaded from reporting an injury
Workplace retaliation requires that the employer take a materially adverse action in response to an employee’s asserting or protecting their EEO rights. Examples of materially adverse actions cited by the EEOC include:
Demoting to a lesser position
Passing over for promotion
Giving undeserved poor performance reviews
Shifting working hours so the person’s family and social life suffers
Ostracizing by relocating the employee’s workspace
Engaging in verbal or physical abuse
Issuing threats or intimidations
An employee who feels retaliated against must first report the incident to the EEOC or the Ohio Civil Rights Commission (OCRC). Ohio actually began enacting civil rights legislation before the federal government. In 1959, the Ohio Civil Rights Act became law, but it was somewhat limited in scope to businesses that engaged in offering public accommodations. In the decades following, protections were vastly expanded.
Each agency will investigate any claim it receives and will attempt to resolve the situation. Sometimes, lawsuits may be initiated, but for an employee to initiate an individual lawsuit, the investigating agency must issue a “right to sue” notice. In some instances, if either the EEOC or OCRC fails to issue such a notice, the complainant can request one, or after a certain statutory period has passed, initiate a lawsuit anyway.
To prove retaliation, three elements must be established:
An individual engaged in prior protected activity;
The employer took a materially adverse action; and
Retaliation caused the employer's action.
Even if an employee has a valid charge of retaliation against their employer, that employee can still be subject to discipline based on poor performance or misconduct at work. The employer would need to show documentary evidence of substandard past performance in taking action against an employee who has filed a charge of retaliation.
Indeed, doing so is exactly what most employers undertake to counter the third element of proving retaliation – “retaliation caused the employer’s action.” If the employer can show the adverse action it took was justified by the employee’s past conduct, it can counter the retaliation charge. In other words, for the employee to prevail in a retaliation claim, the act of retaliation must be shown to be the “but for” or “because of” factor.
OSHA not only fields complaints from employees about workplace violations of safety and health standards originating in the Occupational Safety and Health (OSH) Act and its implementing regulations, but it also enforces 22 specific “whistleblower” laws.
These laws are often industry specific – covering, for instance, seamen and railway workers – but also include environmental statutes covering clean water, asbestos, toxic waste, and other substances and practices. Securities fraud is also covered.
Duwel Law is a two-generation, family-owned business. We represent both employees and employers in asserting their rights and protections under federal and state law. If you’re involved in a retaliation claim in or around Dayton, Ohio, whether employer or employee, we will meet with you, listen to the details of your situation, and advise you of your options going forward. If you’re facing a lawsuit or initiating one, we will represent your interests vigorously in court. Call us today.