Claims of workplace retaliation once again top the charts of claims filed with the Equal Employment Opportunity Commission (EEOC) for its fiscal year 2020, continuing a longstanding trend dating back several years. Title VII of the Civil Rights Act of 1964 (Title VII) prohibits an employer from retaliating against an employee who has “made a charge, testified, assisted or participated in” any charge of unlawful discrimination under the Act. An employee’s opposition to an unlawful employment practice, or participation in an investigation, proceeding or hearing under Title VII is referred to as “protected activity.” An example of protected activity is an employee making internal
reports about discriminatory employment practices or harassment directed toward the employee or the employee’s coworkers.
The EEOC announced its fiscal year data on Friday, February 26, 2021, reporting that allegations of retaliation outnumbered allegations of discrimination based upon any one of Title VII’s protected characteristics, including race, sex, national origin and disability. Allegations of retaliation accounted for 55.8% of all charges filed with the EEOC, totaling 37,362, followed by allegations of disability discrimination (36.1%), race discrimination (32.7%), and sex discrimination including sexual harassment (31.7%). The EEOC handled 67,448 charges of workplace misconduct in 2020, which continues the downward trend of charge filings since 2016 when 91,503
charges were filed with the EEOC. The number of filings with the Commission since 1997 and the breakdown as to the nature of these charges can be reviewed here. Total percentages in this chart add up to more than 100% because those filing charges can pursue claims covering multiple categories.
While executives, managers, supervisors and employees generally are familiar with federal and state laws prohibiting workplace discrimination on the basis of race, sex, national origin, religion, color and disability, frequently they are unaware of the provisions of those same laws that protect against retaliation. Moreover, they may be unaware of the scope of these protections against retaliation covering promotions, job assignments, workforce reductions and similar day-to-day personnel decisions. Significantly, these laws protect against retaliation even if a substantive claim of discrimination is
ultimately deemed meritless and dismissed by the EEOC for lack of “Probable Cause.” You can have a “bad” discrimination claim that leads to a “good” retaliation charge. Employers should make sure to emphasize the provisions in nondiscrimination statutes prohibiting retaliation in regularly conducted workplace training sessions to make sure that decision makers understand what such prohibitions actually encompass.
Our attorneys are available to assist in addressing claims of workplace discrimination and/or retaliation and to partner with HR professionals to provide meaningful workplace training to maintain a workplace free from discrimination, unlawful harassment and retaliation.