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Employees are sometimes reluctant to come forward with discrimination claims for fear that their employer will retaliate against them. Conversely, employers may be afraid to take even legitimate action against an employee who has made a discrimination complaint because of the potential allegation of retaliation. Both parties could benefit from a thorough understanding of their legal rights. The employment law attorneys at Parks, Chesin & Walbert are familiar with issues regarding retaliation that may affect individuals and entities in Atlanta and elsewhere in Georgia.An Increased Concern
In fiscal year 2014, the Equal Employment Opportunity Commission (“EEOC”) received 37,955 charges of retaliation. While this number is down slightly from 2013, there has been a dramatic increase in retaliation complaints in recent years. In 2004, by comparison, there were just 22,740 retaliation complaints. There are also more claims filed alleging retaliation than most other forms of discrimination, and these claims have grown at a faster rate.Laws Prohibiting Retaliation
The EEOC administers and enforces the federal laws prohibiting employment discrimination. Those laws generally protect employees not just from discrimination, but also from employers’ retaliation for opposing discriminatory practices.
Pursuant to 42 U.S.C. § 2000e-3(a), employers are prohibited from discriminating against a person for opposing any practice that is prohibited as an unlawful employment practice by Title VII of the Civil Rights Act of 1964, or for making a charge or participating in an investigation or proceeding under Title VII. The Age Discrimination in Employment Act (“ADEA”) contains the same language prohibiting retaliation against an individual who files a complaint or participates in an investigation or proceeding related to the ADEA.
The Americans with Disabilities Act (“ADA”) prohibits retaliation with the same language as used in Title VII and the ADEA, and it also makes it unlawful for an employer to “coerce, intimidate, threaten or interfere with” a person for exercising his or her rights under the ADA or for helping or encouraging another to exercise those rights.
A person with a retaliation complaint under any of these laws must act quickly. A charge must be filed with the EEOC within 180 days, or the person will be barred from pursuing a claim.Retaliation
It is generally unlawful for employer to retaliate against a person for filing a discrimination complaint. An employer retaliates when it takes “an adverse action” against a “covered individual” for engaging in a “protected activity.” Retaliation requires a showing that the covered person engaged in a protected activity, that the employer subjected the employee to an adverse action, and that there was a causal connection between the protected activity and the adverse action.
A covered individual is someone who has opposed unlawful discriminatory practices, participated in discrimination proceedings, or requested accommodations. A person may also be considered a covered individual if he or she has a close relationship to a person who has opposed discrimination.
A protected activity is opposing a practice that the person believes is discriminatory, participating in discrimination proceedings, or, in some circumstances, requesting a reasonable accommodation.
An employer takes an adverse action when it does something negative to deter an employee from opposing discrimination or participating in a discrimination investigation or proceeding, or to punish an employee for doing so. Adverse actions include refusal to hire, termination, demotion, and reduced pay. The EEOC generally interprets the definition of “adverse action” broadly, but some courts take a narrower view.
The EEOC previously held the position that retaliation could lead to liability when it was a motivating factor in the adverse action. In 2013, however, the Supreme Court held that a claimant in a Title VII retaliation claim must show that the employer took the adverse action because of the protected activity. This is a higher standard than the “motivating factor” standard proposed by the EEOC and makes it more difficult for an employee to succeed in a retaliation claim.
The remedies available to an employee who succeeds in a complaint of retaliation will depend upon the facts of the case and the law under which the claim is brought. Some potential examples may include injunctions, back pay, front pay, and reinstatement.Contact an Atlanta Attorney for Advice on an Employment Discrimination Matter
If you have a legal question or issue involving retaliation after filing an employment discrimination complaint, Atlanta lawyers at Parks, Chesin & Walbert can assist you. We understand discrimination and retaliation laws, and we recognize the need for prompt action by employees and employers who are faced with this situation. You can contact us online or at 877-986-5529 to set up an appointment to discuss your options.