By William Wiley

Those who have been to FELTG’s famous and fabulous EEOC law seminars have seen a graph similar to the one at the left. It represents the fascinating fact that for all the bases of civil rights discrimination (there are eight or so, depending on how you count things), a single basis accounts for about two-thirds of the findings of discrimination in the federal government. And that basis is “reprisal for previous EEO activity,” usually previously filing a discrimination complaint claiming some other basis for discrimination: race, sex, age, whatever.

For years, I concluded that the reason that EEOC was more likely to find that a supervisor had acted in retaliation for a previous EEO complaint was my assessment of the human response to being accused of race/sex/age discrimination. If one of your employees formally charges you with being a racist or a sexual harasser, those are fightin’ words in a lot of places. No normal person wants to be accused of violating another’s civil rights. And terms like “racist” and “sexist” are heavily laden with strong emotion. Therefore, it seemed to me that a supervisor accused of civil rights mistreatment by someone she works with could be expected to change his feelings toward that employee, because that supervisor knows she’s not a racist or sexist or whatever.

We teach in our classes that such feelings on the part of the supervisor are a normal human response and are not a problem AS LONG AS the supervisor doesn’t act on those feelings. In other words, if one of your employees calls you a racist, you may feel hurt and even angry, but you are absolutely forbidden by law from acting on those feelings in any official way. For example, you don’t have to invite the guy who called you a sexist to your birthday party, but you do have to make sure you continue to treat the employee in the workplace based on merit principles, and certainly not in retaliation for the filing of a complaint against you.

So when I saw statistics like those graphed above, that described how 2/3 of the findings of discrimination against federal supervisors are findings of reprisal for prior EEO activity, I wasn’t totally surprised. Yes, the relative number of finds of reprisal as compared to the other categories seemed exceptionally large, but I didn’t know what else it could be. My thought was that many supervisors just could not help themselves when accused of discrimination in EEO complaints, and no matter what we taught or what they knew the law required, retaliation slipped into actions that the supervisor took with the employee, often unconsciously.

And then, EEOC clarified things for me. I’m embarrassed to say that I didn’t see this earlier, but embarrassment has never stopped me before. As I’m sure many of you experienced readers know, but that I did not realize until recently, EEOC applies TWO DIFFERENT STANDARDS when deciding whether a supervisor has violated an employee’s civil rights by discriminating against him.

  • If an employee is claiming race/sex/age/etc. discrimination, EEOC applies the general anti-discrimination provisions of statute which make it unlawful to discriminate with respect to an individual’s “terms, conditions, or privileges of employment.”
  • However, if an employee is claiming reprisal/retaliation for prior EEO activity, EEOC applies the exceptionally broad statutory retaliation provisions that make it unlawful “to discriminate” against an individual because of that individual’s previous EEO activity.

The retaliation provisions set no qualifiers on the term “to discriminate,” and therefore prohibit any discrimination that is reasonably likely to deter protected activity. They do not restrict the actions that can be challenged to those that affect the terms and conditions of employment. Thus, a violation will be found if an employer retaliates against a worker for engaging in protected activity through threats, harassment in or out of the workplace, or any other adverse treatment that is reasonably likely to deter protected activity by that individual or other employees.

Consider the birthday party mentioned above. If you were to announce to your coworker guests that you did not invite Wiley because he is an Episcopalian, that would not be religious discrimination because your statements are not a “term, condition, or privilege of employment.” However, if you were to announce to those same guests that you did not invite Wiley because he previously filed a religious discrimination complaint against you, then you would likely be found liable in a retaliation complaint because your statement “is reasonably likely to deter protected activity by that individual or other employees.”

As EEOC so eloquently stated recently, “This broad view of coverage accords with the primary purpose of the anti-retaliation provisions, which is to maintain unfettered access to statutory remedial mechanisms. Regardless of the degree or quality of harm to the particular complainant, retaliation harms the public interest by deterring others from filing a complaint. An interpretation of Title VII that permits some forms of retaliation to go unpunished would undermine the effectiveness of the EEO statutes and conflict with the language and purpose of the anti-retaliation provisions.” Zenia M. v. HHS, EEOC No. 0120121845 (2015).

The bar is not particularly high for an employee to prove race/sex/age/etc. discrimination. It is lower still when an employee claims that her supervisor has retaliated against her for previous EEO activity. It’s not just human nature that causes a relatively high number of retaliation findings, it’s the law. Wiley@FELTG.com

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