Fedweek Legal

It is illegal for an agency to retaliate against (punish) you for engaging in the Equal Employment Opportunity process. In most cases, federal laws that protect employees’ rights contain provisions that make it unlawful for an agency to retaliate against someone who engages in conduct that the law protects. For example, the anti-retaliation provisions of Title VII provide that it shall be unlawful for an employer to discriminate against an employee or applicant for employment because he has opposed any practice made unlawful by Title VII, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing. Accordingly, you are protected not only if you engage in the EEO process for yourself (for example, by contacting an EEO counselor or filing a formal complaint of discrimination), but also if you complain about, oppose or protest perceived discrimination against you or another employee, assist someone else in opposing discrimination, or give evidence or testimony in someone else’s investigation, hearing, or court case.

Although some courts have held that the retaliation provisions apply only to retaliation that takes the form of ultimate employment actions and others have construed the provisions to require that the action materially affect the terms, conditions, or privileges of employment, the EEOC disagrees with those decisions. The EEOC views the anti-retaliation provisions very broadly and has stated that the statutory retaliation clauses prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. An example that the EEOC uses is the supervisor who, after learning that an EEO charge has been filed, directs employees to keep the complaining employee under surveillance and report back about his activities. The surveillance constitutes an “adverse action” that is likely to deter protected activity, and is unlawful because it was conducted because of the complaining employee’s protected activity. This is true even if no discipline results from the survelliance.

The complaint process for a retaliation claim is the same as for a discrimination claim. You must contact an EEO counselor within 45 days of the retaliation to discuss the claim, then file a formal complaint, then participate in the investigation of your claim, and then you will have the opportunity to request a hearing before an Administrative Judge or go to court. If the retaliation claim stems from a discrimination claim already being processed, you may be able to amend your complaint without starting the process again. Even if your underlying discrimination complaint is not successful–your retaliation claim may be. It is not a defense to a retaliation claim that the original discrimination claim failed.

To prove retaliaton, you must be able to show that the person who made to decision about your job knew about the protected conduct. After knowledge, you have to show a causal connection between the EEO activity and the adverse action taken against you. Timing is often the first step–the closer the adverse treatement occurs to the EEO activity, the easier it is to conclude that the cause of the treatment was retaliation. Showing that the treatment was unwarranted (as in the case of discipline), or that others who engaged in the same activities (but who had not filed EEO complaints) were not similarily treated, may also show that retaliation was the real motive.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **