Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees from discriminating against employees and applicants based on race, color, national origin, religion, and sex (including pregnancy). Additional federal laws, such as the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA), also prohibit workplace discrimination based on disability and age (for those 40 and older), respectively. The ADA also applies to employers with 15 or more employees; the ADEA applies to employers with at least 20 employees.
The federal Equal Employment Opportunity Commission (EEOC) is responsible for investigating complaints of workplace discrimination and harassment under these laws. The EEOC typically does not conduct random workplace audits looking for discrimination. Instead, the EEOC relies on workers to file complaints of discrimination and harassment (also called “charges”). Because the EEOC relies on workers to come forward, federal antidiscrimination laws also prohibit employers from retaliating against employees for doing so. (For more information, see our page on Employment Discrimination.)
What Is Retaliation?
An employer may not retaliate against employees for complaining of discrimination or harassment, whether through an internal company complaint process or through filing a charge of discrimination with the EEOC or a similar state agency. Employees are also protected from retaliation for participating in an investigation into discrimination or harassment. For example, an employer may not fire an employee because the employee speaks to an EEOC investigator or supports a coworker’s discrimination complaint.
An employer retaliates against an employee when it takes action to punish the employee for complaining of discrimination or harassment. Any adverse action against an employee can be retaliation, including firing, demotion, discipline, reductions in pay, or changes in job or shift assignment, if that action might deter a reasonable employee from making a complaint. Because enforcement of antidiscrimination laws depends on employee complaints, courts tend to define retaliation broadly.
What To Do If You Face Retaliation
If your employer takes any negative action against you because you exercised your rights under antidiscrimination laws, you can take action. If you’ve already filed a charge with a government agency, tell the investigator that you are being retaliated against and ask to file a separate charge of retaliation. If you made an internal company complaint, talk to the person who took your original complaint or to the HR department. State that you are being punished for complaining and you want it to stop.
When you file your charge of retaliation, explain what happened, when, and who was responsible (to the best of your knowledge). For example, you might say, “After I complained that my manager was sexually harassing me, he took me aside and accused me of being a tattletale. He told me he no longer trusted me to handle major accounts, and several days later he took me off my largest client, the Smith Corporation.”
What the EEOC Will Do
Once you file a charge, the EEOC can respond in a number of ways. If your charge doesn’t raise a potential legal violation, the EEOC might dismiss it right away. For example, if your employer is too small to be covered by Title VII or your state’s antidiscrimination law, the EEOC might dismiss your charge.
Otherwise, the EEOC will ask your employer to respond to your allegations. The EEOC might then investigate your claims, send you and your employer to mediation to try to resolve the dispute informally, or try to broker a settlement directly with your employer.
If the EEOC doesn’t succeed in resolving the problem, it can file a lawsuit against the employer on your behalf. This is exceedingly rare however. Typically, the EEOC will instead issue a “right-to-sue” letter once it has finished processing your claims. You’ll need this letter if you want to sue your employer in court: Employees are legally required to file a charge of discrimination with the EEOC (or a similar state agency) before they may file a discrimination, harassment, or retaliation lawsuit. You have only 90 days after the EEOC issues a right-to-sue letter to file your lawsuit, so you’ll need to be prepared to move quickly.
Talk to an Employment Lawyer
If you are facing retaliation for complaining about harassment or discrimination, particularly if you were fired or threatened with termination, you should talk to an experienced employment lawyer right away. A lawyer can help you quickly assess the facts and decide on the best way to proceed. For example, if your manager is threatening to fire you, a lawyer can write your employer a letter threatening legal action if you are terminated. This will not only give you the best shot at keeping your job, but also bolster your legal claims if your employer takes action against you anyway.
You’ll need to file a charge of retaliation with the EEOC or your state’s fair employment practices agency, in addition to your original charge of discrimination or harassment. A lawyer can also help you file a retaliation charge, direct you through the EEOC or your company’s investigation process, and represent you in settlement negotiations. And, if the agency doesn’t resolve your complaint, a lawyer can file a lawsuit against your company on your behalf.