Termination: Have You Suffered Retaliation at Work?

Termination is one of the most obvious forms of retaliation at work. Other obvious forms of retaliation include refusal to hire, denial of job benefits, denial of promotion, demotion, and suspension. Other kinds of adverse actions include: threats, reprimands, harassment, negative evaluations, or other adverse treatment of employees.

Title VII of the Civil Rights Act of 1964, [FN1] the Age Discrimination in Employment Act, [FN2] the Americans with Disabilities Act, [FN3] and the Equal Pay Act [FN4] prohibit retaliation by an employer, employment agency, or labor organization because an individual has engaged in protected activity. [FN5]

Protected activity, as defined, consists of the following:

(1) opposing a practice made unlawful by one of the federal employment discrimination laws (based on the "opposition" clause); or

(2) filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable federal law (based on the "participation" clause).

[FN1] Section 704(a) of Title VII, 42 U.S.C. §2000e-3(a).

[FN2] Section 4(d) of the ADEA, 29 U.S.C. § 623(d).

[FN3] Section 503(a) of the ADA, 42 U.S.C. § 12203(a). Section 503 (b) of the ADA, 42 U.S.C. 12203(b), further provides that it is unlawful "to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter."

[FN4] Section 15(a)(3) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 215(a)(3).

[FN5] Federal employees are also protected against retaliation under each of the employment discrimination statutes. See, e.g., Hale v. Marsh, 808 F.2d 616, 619 (7th Cir. 1986) (recognizing retaliation cause of action for federal employees under Title VII); Bornholdt v. Brady, 869 F.2d 57, 62 (2d Cir. 1989) (recognizing retaliation cause of action for federal employees under ADEA).

The U.S. Equal Employment Opportunity Commission (EEOC) has a policy of ensuring that individuals who (1) oppose unlawful employment discrimination, (2) participate in employment discrimination proceedings, or (3) otherwise assert their rights under the laws enforced by the EEOC are protected against retaliation.

Voluntary compliance with the anti-discrimination laws and effective enforcement of those laws depend in large part on two things: (1) on the initiative of individuals to oppose employment practices that they reasonably believe to be unlawful, and (2) to file charges of discrimination.

If employer retaliation for employees' oppositional or participatory activities were permitted to go un-remedied, it would have a chilling effect upon the willingness of individuals to speak out against employment discrimination or to participate in the Commission's (EEOC's) administrative process or in other employment discrimination proceedings.

Retaliation claims are processed by the EEOC's administrative review process, either separately or in combination with local human rights commissions or agencies. The EEOC generally will try to encourage a resolution between the parties through mediation. Employees who have been subjected improperly to termination are, by law, to be restored to their jobs.

The Commission can sue for temporary or preliminary injunctive relief before completing its processing of a retaliation charge if the charging party or the Commission likely will suffer irreparable harm due to of the retaliation.

One of the important steps to take is to document everything as thoroughly as you can, in chronological sequence, if you think you are being subjected to retaliation or to wrongful termination. Also see wrongful termination.

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