Ask The Lawyer

By Debra Roth

Facing an EEO complaint

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Managers can never make all their employees happy. While feelings of surprise or betrayal are natural, you should be careful not to retaliate against the employee who files a complaint against you, especially if the issue is related to equal employment opportunity activity.

The Equal Employment Opportunity Commission’s regulations explicitly state that individuals are protected from retaliation after opposing any practice made unlawful by Title VII, the Age Discrimination in Employment Act, the Equal Pay Act or the Rehabilitation Act, or for participating in any stage of the administrative or judicial proceedings under those statutes.

EEOC identifies the following activities as “protected” from retaliation: EEO counseling; acting as an EEO representative; speaking out against reasonably perceived discrimination; providing evidence in connection with an EEO complaint; testifying at an EEO hearing; requesting reasonable accommodation for a disability or religion; and filing an EEO complaint. Basically, if an employee is subject to disparate treatment or discriminatory harassment after taking part in one of these activities, he or she could have the basis for a reprisal claim.

According to EEOC statistics, EEO retaliation is a common problem in the federal workforce, with reprisal remaining at the top of the list for discrimination claims raised by employees. It may be that managers simply don’t recognize what can be considered as retaliatory action before it’s too late.

The EEOC’s Compliance Manual interprets the statutory clauses prohibiting retaliation to “prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the complainant or others from engaging in protected activity.” This leaves a wide range of conduct subject to inclusion in the definition of unlawful retaliation, pending the complainant’s ability to relate the retaliatory act to his or her own protected EEO activity.

When proving a claim of reprisal, the employee must establish “temporal proximity.” That is, the complainant must show the alleged harassment or disparate treatment stemmed from his or her prior EEO activity. If the employee cannot prove the manager was aware of prior EEO activity, the claim won’t hold merit.

Retaliatory harassment can occur in two ways: harassment that results in a tangible employment action, or harassment that creates a hostile work environment. A tangible employment action is a significant change in employment status, such an unwarranted transfer to another position.

Harassment creating a hostile work environment occurs when conduct by a supervisor based on an employee’s prior EEO activity is so severe that it unreasonably interferes with the employee’s work conditions or creates an intimidating, hostile or offensive work environment.

Disparate treatment can be established when an employee who engaged in EEO activity is treated less favorably than similarly situated employees. This can include less-than-favorable treatment in hiring, promotion, work assignments, training, awards, performance appraisals, and removal or termination.

However, if the agency can prove a legitimate explanation for its action other than retaliation, the complaint may not be upheld. For example, in the 1999 case Gray v. Army and Air Force Exchange, an employee alleged retaliatory discrimination after her hours were cut back. The agency established that the complainant’s hours were reduced because of a reduction in sales, not retaliation.

The places where managers become vulnerable to successful reprisal claims are poor recordkeeping, a lack of standard procedures, and the failure to adequately assess an employee’s performance. Fair and consistent documentation of employment decisions can go a long way toward defending retaliation claims.

When faced with an employment discrimination issue, managers should ensure they document every aspect of personnel decisions that could be considered retaliatory. Also, take care not to discourage or express displeasure in employee participation in the investigation.

Finally, don’t stonewall the process. Your failure to cooperate could lead an administrative judge to draw an adverse inference from your action. If you’re unsure of your rights in the process, remember your right to representation. The government attorneys will be representing the agency, not you. Private legal counsel may be something to look into.

Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.