If you read this column regularly, you know that employer retaliation against your exercising your civil rights in the workplace is illegal under federal or state anti-discrimination laws.
For example, if you testify on behalf of a fellow employee who has been targeted with racial epithets in the workplace, you are protected from retaliation for giving that testimony.
Likewise, if you make a complaint against a supervisor for using sexually hostile language in the workplace, and the company then starts to overly-scrutinize your work, you will be protected from that kind of retaliation. This is so even if the hostile language that you were subjected to did not rise to the level of a sexually-hostile work environment.
Our courts have generally been very expansive in holding employers accountable for retaliatory behavior. The reasoning is easy to understand: if our anti-discrimination laws are intended to eradicate discrimination in the workplace, then folks need to feel comfortable reporting discriminatory actions or even testifying about discrimination.
If discriminators can shield themselves from facing the consequences of their discriminatory acts by retaliating against witnesses, then discrimination will proliferate. The law will be incapable of putting an end to it. We have pretty robust anti-retaliation laws for the workplace. They are even tougher than the anti-discrimination statutes.
The EEOC, the federal agency empowered to stop discrimination and retaliation in the workplace, recently put out some new guidance on addressing retaliation issues related to COVID.
COVID has changed everything about the workplace, including, apparently, how folks discriminate and retaliate. It has gotten so bad that the EEOC is now putting out guidance on how to deal with it.
Under the specific guidance that the EEOC has sent out, the agency has written that, in an example where an Asian-American employee complains about a coworker making abusive comments accusing Asian people of spreading COVID-19, said employee would be protected from retaliation.
The EEOC has also reminded employers that where an employee is harassed for refusing the COVID vaccine for religious reasons and reports the harassment, any subsequent retaliation against the employee for reporting the harassment would be illegal.
While sexual harassment has routinely occurred in-person in the workplace, the EEOC is now reminding employers that harassment can also occur in virtual settings including in videoconferences or via messaging apps. Employers need to ensure that anti-harassment policies are expansive enough to include remote work.
The guidance also reminds employers that anti-retaliation laws apply to protect most employees regardless of the employees’ citizenship or work authorization status. Anti-retaliation protections apply to former employees as well. Typically, this will be in the context of post-employment recommendations for former employees.
Retaliation occurs when an employer’s response is such that it could deter a reasonable person from engaging in protected activity like filing a complaint or testifying on behalf of a coworker. Retaliation, by its nature, is designed to dissuade folks from speaking out against illegal activity.
That is why the anti-retaliation provisions of state and federal law need to be robust. Without stiff penalties, the policy designed to eliminate discrimination would fail.