By Deborah Hopkins, June 12, 2018

Reprisal is a word that strikes fear in the hearts of supervisors everywhere. Indeed, we’ve seen a few cases where seemingly-minor behaviors were found to be EEO reprisal. For the purposes of this article, we’ll define reprisal as adverse treatment of an individual who engages in protected activity. Adverse treatment is much broader than adverse actions; it applies to any undesirable treatment, including things that would not constitute personal injury under EEO antidiscrimination statutes.

A lot of federal supervisors and advisers know that the law protects people for participating in the EEO process in any way, but many miss the other side of protection: the opposition side of EEO activity. Let’s look at both. But first, as we do here at FELTG, let’s look at the law.

It shall be an unlawful employment practice for an employer to discriminate against any employees or applicants . . . because he has opposed any practice made unlawful by this subchapter, or because he had made a charge, testified, assisted or participated in an investigation, proceeding or hearing . . .

 42 USC § 2000e-3 (emphasis added).

Participation Clause

The following things are considered participation in protected EEO activity, and employees who engage in these activities are protected from reprisal.

  • Contacting an EEO counselor
  • Filing a formal EEO complaint
  • Testifying at an investigation or hearing
  • Providing documents to a complainant
  • Requesting a reasonable accommodation

There probably aren’t any surprises on that list. However, the participation clause of the law goes much further, as we see in the case law. Read on.

  • Filing a frivolous EEO complaint is participation, as is contacting an EEO counselor with no intent to file a complaint. Hashimoto v. Dalton, 118 F.3d 671 (9th 1997), cited in EEOC Compliance Manual §8-11(C)(2).
  • A witness doesn’t need to actually testify in order to be protected. Being named as a potential witness is participation for the purposes of reprisal protection. Green v. Navy, EEOC Appeal No. 01964701 (1997).
  • Representing a complainant is participation, and action taken against a representative aggrieves the complainant and may be considered reprisal. Larson v. Secretary of Navy, EEOC Appeal No. 01983075 (1999).
  • Even having a close association with individuals who file complaints is a protected activity. The seminal case on this involved an engaged couple. The company fired the complainant’s fiancé in reprisal, and the Supreme Court said, “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” We don’t know the extent of association, though; the Court declined to “identify a fixed class of relationships for which third-party reprisals are unlawful.” Best practice: don’t push it. Thompson v. Northern American Stainless, LP, 131 S. Ct. (2011).

There is a limit to the participation clause, though: an employee can’t go storming off workroom floor in search of counselor in defiance of supervisor’s order, and if he does, disciplining that employee is not reprisal for protected activity. Butler v. Postmaster General, EEOC Appeal No. 01872877 (1988).

Having fun yet?

Opposition Clause

The EEOC Compliance Manual, 8–II(B), tells us that an individual is protected from reprisal if that individual explicitly or implicitly communicates to her employer a belief that an activity constitutes a form of employment discrimination under the statutes enforced by EEOC. This opposition must strike a balance between a supervisor’s need for a stable and productive workforce, the rights of individuals to oppose discrimination, and the public’s interest in enforcement of EEO laws.

Frivolous opposition is not covered, though. The Opposition Clause has three requirements, and an employee must meet at least one. An employee sets forth a proper claim if:

  1. A challenged employment practice violates Title VII;
  2. She possessed a good faith, reasonable belief that it did; or
  3. She possessed a subjective, good faith belief that Title VII was violated by the practice.

Mattern v. Postmaster General, EEOC Appeal No. 01850054 (1986).

So, a comment such as an employee’s vague assertion, “All these agency managers are a bunch of white supremacists” is likely not enough to trigger the protection of the opposition clause.

But, examples of covered opposition include specific complaints about employment practices to:

  • Managers or supervisors
  • Union officials
  • Coworkers
  • Reporters
  • Congresspersons

So, hopefully now you know more about reprisal. For more on this topic, join us for EEOC Law Week offered next September 17-21 in Washington, DC. Hopkins@FELTG.com

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