In our last article, Discrimination in the Workplace, we discussed the nature of workplace discrimination and employee rights. Your rights as an employee do not end at filing a discrimination complaint/claim. During this time, you may engage in “protected activity” rights without the fear of retaliation from your employer.
Massachusetts law prohibits employers from taking any adverse action against an employee or employees because of their protected activity engagement after filing an employment discrimination complaint or claim with the Equal Employment Opportunity Commission (EEOC), discussing with another person about his or her rights being taken away or assisting with an EEOC investigation.
In this article, we will discuss retaliation, its increase in cases, and how to combat workplace retaliation.
What is retaliation?
According to the EEOC, there are three elements that form the basis for retaliation against an employee’s equal employment opportunity rights during current or prior employment.
1. Protected activity: participating in an equal employment opportunity process or is the opposition to discrimination.
2. Employer reaction: participating in materially adverse actions against an employee exercising their “protected activity” rights.
3. One and two connection: there has to be a required level of causal connection between the employee’s protected activity and the employer’s adverse action.
Element One: Protected Activity
When first looking at a claim, there will be a review to determine if you were participating in an EEOC process or engaging in protected activities during the period of time that you are claiming retaliation. An EEOC process is denoted as filing a claim or assisting/ participating in an investigation through testimonial. Examples of protected activities include refusing to follow orders that would result in discrimination, resisting sexual advances or asking for accommodation for disabilities.
Employees who evoke their “protected activity” rights are protected under the participation clause. The participation clause broadly protects individuals making claims from being retaliated against regardless if their claim is true.
Element Two: Employer Adverse Actions
There are adverse actions such as the firing, demoting or a decrease in pay to the employee that is clearly defined as adverse actions; however, what about the less noticeable actions?
Less noticeable adverse actions could include reprimands, poor performance reviews and threatening.
According to the EEOC, an adverse action would most likely deter the complainant from participating in any above mentioned “protected activity.”
Element Three: A Connection
The last element is finding the connection between protect activity engagement and the employers adverse action.
For example, an employee goes to their boss to discuss a workplace discrimination issue, and their boss threatens them with termination, which results in them not filing a claim or exercising their protect activity rights. This could be a form of retaliation that is illegal.
Another example would be if the employee files a workplace discrimination claim with the EEOC, and the employer manifested a poor performance review after the claim was filed, which resulted in termination. It’s important to note that employees are not protected from termination, unless it can be proven that it was done as a form of retaliation. So, in this example, if the complainant proved that they had higher performance reviews prior to the claim, they may be able to prove retaliation.
If either of the employees in the above examples could not successfully prove retaliation, they are still protected under the participation clause. Because of the participation clause, which broadened the parameters of who is protected, the Massachusetts Supreme Court has seen an increase in retaliation claims.
Increase in retaliation claims and the EEOC’s response
The EEOC saw 42,018 retaliation claims, which made up 46 percent of all charges, filed in 2016.
“EEOC advances opportunity for all of America’s workers and plays a critical role in helping employers build stronger workplaces,” said Jenny Yang, EEOC Chair. “Despite the progress that has been made, we continue to see discrimination in both overt and subtle forms. The ongoing challenge of combating employment discrimination is what makes EEOC’s work as important as ever.”
Employees should realize that they are not immune to being discharged/terminated after filing a discrimination claim; however, if their “protected activity” rights are violated, a claim against their employer may amount to a viable retaliation claim.
What are the penalties for employer retaliation claims?
If an employer engages in retaliation, they may face multiple penalties and damages.
● Civil penalties
● Lost wages and emotional distress damages
● Charges for attorney’s fees, court fees
● Punitive damages (meant to deter the defendant from doing it again)
● Conditions of rehire or promotion
To further dissuade the employer from making the same mistake again, they may also be required to take proactive actions to combat workplace retaliation. As employers face incredible scrutiny from the public, and have a bigger chance of having lawsuits brought against them, they have a great incentive to develop a course of action to decrease workplace retaliation.
What are your next steps?
The Massachusetts Commission Against Discrimination (MCAD) and EEOC protect employees who exercise their “protected activity” rights when filing an employment discrimination complaint or claim for retaliation.
In Massachusetts, the MCAD and EEOC require that you file your discrimination and/or retaliation charge not later than 300 days from the discriminatory act or acts. If you have participated as a witness for someone else’s discrimination case, and feel that you are being retaliated against, you may file your own compliant with the MCAD and EEOC. If you are a past employee that has filed a previous discrimination claim, and feel that you are being retaliated against, you may also file your own claim with the MCAD and EEOC.
We understand that you may be worried about your job or any form of retaliation. We are here to help guide you during this time.
Working with an experienced attorney can ensure that your rights are protected and a successful resolution is reached on your case. The Law Offices of Michael O. Shea has 25 years of experience working in employment law and litigation with a focus as a workplace discrimination in Massachusetts.
Call today for a free consultation.
(617) 350-9969 Boston, MA
(413) 733-1955 Springfield, MA
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(508) 753-9350 Worcester, MA