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The ABCs Of Retaliation: A Must Read For Managers And Supervisors

By Kirstin Heffner, The McCalmon Group, Inc.

The U.S. Equal Opportunity Commission (EEOC) recently sued a farm labor contractor for ongoing sexual harassment and retaliation. According to the EEOC, the employer allowed a manager to sexually harass at least four female farmworkers since 2010. The harassment included sexual comments and leering, as well as unwanted sexual touching and even forcible kissing of the women. The manager also offered employment benefits in exchange for sex.

The EEOC alleges that, after learning about the harassment, the employer simply transferred the perpetrator to a different farm where he continued to sexually harass more female farmworkers. Regarding the retaliation claim, the employer either laid-off or failed to rehire at least four farmworkers who either reported or opposed the abuse. In addition, the employer fired at least three farmworkers for their family relationships with the victims.

The EEOC seeks compensatory and punitive damages for the victims and injunctive relief to prevent further discrimination and harassment. "EEOC Sues Bornt & Sons and Barraza Farm Service For Sexual Harassment," www.eeoc.gov/eeoc/newsroom/release/4-5-17c.cfm (Apr. 05, 2017).

Federal law prohibits punishing job applicants or employees for asserting their equal employment opportunity (EEO) rights or, in other words, retaliation. Managers and supervisors need to know exactly who is protected from retaliatory behavior so that they can prevent it and stop it in its tracks.

Protections apply to job applicants, employees (including those employed by employment agencies) part-time, probationary, seasonal, temporary, and former employees. Managers and supervisors cannot refuse to hire or promote someone for making a complaint against a former boss or employer. Furthermore, they cannot give a negative job reference that is untrue in retaliation against the person asserting EEO rights.

The EEOC also makes clear that retaliation protections apply regardless of citizenship or work authorization status. Every worker, regardless of work eligibility status, can raise EEO complaints and is protected from retaliation.

Employees are also protected when they complain about discriminatory conduct that affects others, even if they are not the targets or are not even harmed by the conduct in question. Simply serving as a witness is sufficient to invoke protection against retaliation. According to the EEOC, protecting reporters prevents a chilling effect on reports of discrimination.

It is important to note that retaliation against third parties is illegal. Pursuant to the 2011 U.S. Supreme Court decision, Thompson v. North American Stainless LP, it unlawful for an employer to retaliate against someone by taking action against a family member or close friend.

If an employer retaliates against a family member or close friend, both people may have a claim against the employer. The Supreme Court in Thompson v. North American Stainless LP determined that the anti-retaliation provisions of Title VII are to be broadly construed because they were designed to prohibit behavior that might dissuade a reasonable worker from making, or supporting, a charge of discrimination – once again, trying to prevent the chilling effect described above.

All in all, retaliation includes a broad range of potential claimants. Because of this, managers and supervisors must check any thoughts of retaliation at the door and carefully document the legitimate reasons for every adverse employment decision.

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