By Meghan Droste, July 21, 2021

This month, we continue the discussion of retaliation. Last month, the tip was not to do it. While that might seem obvious, it happens regularly and the EEOC has cautioned that may be, in part, due to a lack of training for supervisors on how to manage interactions with employees. This month, we focus on the next question that naturally follows: What is it? In order to stop yourself from doing it, it’s important to know what retaliation actually is.

The easy answer is that a retaliatory action is anything done in response to protected activity that might have a chilling effect. That means, any action that might discourage the complainant from engaging in protected activity in the future. Sometimes, this can be obvious to identify.

For example, in a recent decision, the Commission found per se retaliation due to a supervisor speaking about the complainant’s EEO complaint in an angry voice, and another supervisor telling the complainant that he was offended by her allegations. See Tomeka T. v. Dep’t of the Treasury, EEOC App. No. 2020000390 (June 15, 2021).

So, the first part of this tip is to avoid discussing an EEO complaint with an employee unless there is a specific need to (for example, asking for more information to clarify a request for official time). If you make comments that specifically reference an employee’s complaint, there is a good chance that you are at risk for committing per se retaliation.

One thing that often trips agencies up in the processing of retaliation claims is looking for something “bigger” that has happened and dismissing a claim or finding no retaliation if the retaliatory act seems too small.  While of course not everything will rise to the level of a chilling effect, it is important to remember that the adverse action does not need to be an “ultimate employment action.” It does not have to be something as big as a removal, demotion, or a suspension.  The Commission’s recent decision in Ronnie R. v. Department of Defense, EEOC App. No. 2021001510 (June 14, 2021) is an example of how agencies can make this mistake.

In this case, the complainant alleged the agency retaliated against him when his supervisor denied his request for official time to speak with an EEO counselor and instructed him to go to the security office for an investigation of theft involving four bolts.  The agency dismissed the claim for failure to state a claim, finding that “there was not a disciplinary action or harm resulting” from the alleged retaliatory actions.

As the Commission noted in its decision reversing the Agency’s dismissal, “when an individual alleges retaliation in a complaint, they do not need to make a showing of adverse employment action.” The action need only have a chilling effect, or the potential of one, to state a claim of retaliation. That brings us to the second part of the tip: Be careful not to apply the incorrect standard when looking at whether something was retaliatory.  Droste@FELTG.com

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