Harassment Complaint Retaliation is Unlawful and Grounds for Immediate Termination in Business and at Work

As part of the NYS-Mandated Sexual and Other Harassment Prevention Training that I conduct for clients, their managers and employees, retaliation against an employee (or applicant), for example, who files a harassment complaint is considered equally, if not more egregiously non-compliant / unlawful than the reported act of harassment itself, warranting immediate termination for the employee who retaliates.

Here are more details on the wide scope of what is considered to be non-compliant retaliatory behavior from the EEOC’s website:

What actions by applicants and employees are protected from retaliation?

Protected actions can take many forms, ranging from participating in an EEO complaint process to reasonably opposing discrimination. For example, it is unlawful to retaliate against applicants or employees for:

• taking part in an internal or external investigation of employment discrimination, including harassment;
• filing or being a witness in a charge, complaint, or lawsuit alleging discrimination;
• communicating with a supervisor or manager about employment discrimination, including harassment;
• answering questions during an employer investigation of alleged harassment;
• refusing to follow orders that would result in discrimination;
• resisting sexual advances, or intervening to protect others;
• reporting an instance of harassment to a supervisor;
• requesting accommodation of a disability or for a religious practice; or
• asking managers or co-workers about salary information to uncover potentially discriminatory wages.

Participating in a complaint process is protected from retaliation under all circumstances. Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe the issue.

The protections against retaliation apply not only to current employees (full-time, part-time, probationary, seasonal, and temporary), but also to applicants and to former employees.

• For example, a supervisor cannot refuse to hire an applicant because of his EEO complaint against a prior employer, or give a false negative job reference to punish a former employee for making an EEO complaint.

The EEOC even outlines how passive aggressive behavior towards harassment complainants post-complaint is also unlawful:

What if the employer never takes an official employment action against the employee? Could there still be retaliation?

Yes. An employer is not allowed to do anything in response to EEO activity that would discourage someone from resisting or complaining about future discrimination.

For example, depending on the facts of the particular case, it could be retaliation because of the employee’s EEO activity for an employer to:

• reprimand an employee or give a performance evaluation that is lower than it should be;
• transfer the employee to a less desirable position;
• engage in verbal or physical abuse;
• threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police);
• increase scrutiny;
• spread false rumors, treat a family member negatively (for example, cancel a contract with the person’s spouse); or
• take action that 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).

Because retaliation against an employee or applicant after they file a harassment complaint – even if the complaint is on the milder end of the harassment scale – is unlawful, failure on the part of the employer to terminate an employee who retaliates is to condone a violation of the law – which in turn, is not compliant for the employer, resulting in automatic employer liability for the same unlawful activity.

The EEOC has also has advice for employers to minimize retaliation exposure:

Can employers do anything to reduce their chances of violating the law?

Yes. The following practices are not all legally required, but may reduce the chances of retaliation:

• Education: Supervisors and managers may not know that certain acts are considered illegal retaliation or interference. An employer can educate its workforce by having a written, plain-language policy, and by training all of its employees to identify and stop retaliation and interference. Employees may benefit from instruction on how to handle tough situations where retaliation or interference is likely to occur.
• Documentation and review of employment actions: Managers and supervisors may be more aware of actions that can be viewed as retaliatory if they are required to justify negative employment actions in writing. Other supervisors could be asked to review these negative actions to ensure that they are justified and consistent with existing practice.
• Support: Employees who are accused of employment discrimination, harassment, or interference may benefit from ongoing, individual support. The employer can discuss its policies and provide tips for avoiding actual or perceived retaliation and interference.

How do you effectively protect your organization and your employees from unlawful harassment complaint retaliation in business and at work?