EEOC Guidance: What Is Unlawful Retaliation Against Employees?

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If you are working in a hostile work environment, it can be hard to raise objections to the discrimination you experience. Many employees rightfully fear retaliation if they speak up against illegal policies or practices by their employers. This kind of retaliation is illegal. If you face unlawful retaliation at work, you need to know your rights under the law.

In this post, I will review the recent guidelines published by the Equal Employment Opportunity Commission (EEOC) against retaliation in the workplace. I will describe what counts as unlawful retaliation against employees. I will also explain what options are available if you face retaliation at work.

Equal Employment Opportunity Laws Prevent Retaliation

EEOCEach of the equal employment opportunity laws that the EEOC enforces include portions making retaliation and related conduct illegal. Retaliation is illegal under the:

  • Civil Rights Act of 1964
  • Age Discrimination and Employment Act (ADEA)
  • Americans with Disabilities Act (ADA)
  • Rehabilitation Act
  • Equal Pay Act (EPA)
  • Genetic Information Nondiscrimination Act (GINA)

Each statute includes its own provisions regarding retaliation. The ADA also protects against interference with an employee’s rights under that statute. In August 2016, the EEOC issued new “Enforcement Guidance on Retaliation and Related Issues.” It explains what retaliation is, who and what is protected, and what the consequences are to employers who don’t follow the law.

What is Unlawful Retaliation?

If your employer has taken an adverse employment action because you attempted to assert your rights under an equal employment law, you may have been the victim of retaliation. To file a retaliation claim, you and your employment discrimination attorney will need to demonstrate that:

  • You were engaged in a protected activity
  • Your boss took a materially adverse employment action
  • Retaliation caused the adverse action.

Who is Protected?

Retaliation is illegal no matter who your employer is. It applies to current employees, former employees (facing discrimination in their new jobs), and potential hires. It also protects against actions by an employment agency or labor union.

What is a Protected Activity?

Protected activities include lodging an internal complaint, filing a claim with the EEOC, requesting ADA accommodations, testifying in an EEOC matter, or participating in any other way with a civil rights complaint. You are also protected for opposing something you believe is discrimination. Even if you end up being wrong or the complaint is eventually unsuccessful, your participation is protected.

However, employees should beware that they cannot use a protected activity to cover up poor performance or wrongful conduct. If an employer’s reason to fire you was created before you filed your complaint, the EEOC won’t save you from the consequences of your actions.

What is a Materially Adverse Employment Action?

Retaliation includes any employment-related action serious that it might deter a reasonable person from engaging in a protected activity. In other words, if it is bad enough that you might think twice about filing a complaint or lodging a protest, it is a materially adverse employment action. This is a case-by-case issue, but it could include:

  • Firing
  • Failure to hire
  • Suspension
  • Passing over for promotion
  • Assigning harder work
  • Assigning less desirable hours
  • Changing a work schedule
  • Exclusion from company activities
  • Negative evaluations or warnings
  • Verbal or physical threats
  • Questioning legal work status of immigrants
  • Terminating union grievances

Even if you go ahead and do the protected activity, you may have a retaliation claim if your employer’s behavior was enough to reasonably make you think not to.

How to Prove Retaliation was a Motive

Often, an employer will say that it acted based on a non-retaliatory reason (like poor performance or lack of qualifications for a job). It is up to the targeted employee to provide evidence supporting the position that retaliation was the motive behind the adverse employment action. This could include:

  • Timing between the protected activity and the materially adverse action
  • Statements made demonstrating motive
  • Comparisons to others in similar situations
  • Credibility of the employer’s stated reason

Unlawful Retaliation Remedies

If you have been the victim of unlawful retaliation, an employment discrimination attorney can help you seek several kinds of relief:

  • Reinstatement
  • Back pay
  • Replacement pay (also called front pay)
  • Compensatory damages for money spent because of the retaliation
  • Punitive damages (against private employers)
  • Changes in corporate policy
  • Corporate training
  • Reporting & supervision by EEOC

Your attorney will discuss your goals with you to determine what kinds of relief will best allow you to move on with your life.

Get Help from an Employment Discrimination Attorney

If you are facing retaliation at work, it could leave you feeling like you are facing a giant. But you don’t have to face it alone. Our experienced employment discrimination attorneys at Eisenberg & Baum, LLP, can help fight back against workplace retaliation. We will review your case with you and discuss all of your options.Contact us today to schedule a free initial consultation and get your case started.

Female Lawyer Sues Chadbourne & Parke for Wage Discrimination

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When you think of wage discrimination, you may think of secretaries, teachers, or other traditionally female roles. But a recent lawsuit by female lawyer Kerrie L. Campbell against the law firm Chadbourne & Parke shows that wage discrimination can happen at any level, and in any industry.

In this blog post, I will review the law relating to wage discrimination based on gender. I will discuss the Campbell lawsuit against Chadbourne & Parke and explain how gender discrimination can happen even at the partner or management level.

Wage Discrimination & The Equal Pay Act

In 2015, women working full time jobs in the U.S.A. earned an average of 80% of the wages paid to men. This gap has shrunk considerably from the 60% they were earning in 1960, but a distinct wage gap still exists. When this happens within a particular business, the underpaid female employees may have the grounds for a lawsuit.

Gender discrimination is illegal under state and federal law. Title VII of the Civil Rights Act prohibits employers from considering sex or gender when it sets the pay or benefits of its employees. So if a company routinely pays its female staff less than its male employees, those women workers could have a claim before the EEOC or in federal court.

Similarly, the Equal Pay Act requires that men and women working in the same workplace be given equal pay for equal work. If two people’s job content (what they do) is substantially similar, their pay, overtime options, and benefits should be equivalent as well. Where inequality is found, the company is not allowed to lower one employee’s wages to match the other.

One big difference between wage discrimination claims under Title VII and the Equal Pay Act is the process to get relief. In most cases, gender discrimination claims must go through the Equal Employment Opportunity Commission (EEOC) before they head to federal court. The EEOC will assign an investigator and negotiate with the employee and employer to try to resolve the matter without a lawsuit. If the EEOC decides that there is evidence of discrimination it can issue a “right to sue” letter or take the case to court itself. All of this can take time, while an employee is stuck in an underpaying job. Under the Equal Pay Act, underpaid employees can take their cases directly to court, without going through the EEOC first.

Kerrie L. Campbell v. Chadbourne & Parke, LLP

On August 31, 2016, trial attorney Kerrie L. Campbell filed a wage discrimination complaint against Chadbourne & Parke, LLP, in the United States District Court for the Southern District of New York. The complaint claims that Campbell, a seasoned trial lawyer with a good reputation and years of experience, was being paid among the bottom ranks of male partners at the firm. The complaint describes her achievements at the firm, noting that she had generated revenue “consistent with the Firm’s top performing male Partners.” But her compensation was two to three times less than her male counterparts.

According to the complaint, hiring, firing, and wage decisions at Chadbourne & Parke are made by a 5-man (yes, all males) Management Committee. As outlined in the complaint, Campbell noticed that they tended to assign fewer compensation points (which translate into salary raises and bonuses) to women than men who generate similar revenue. The complaint alleges that when she brought her concerns to management, she was told her success in 2014 was a “fluke” and her litigation support was cut. According to Campbell’s complaint, the Management Committee decided in 2015 that she did not “fit” with the “strategic direction” of the firm. She alleges that in order to get her to leave quickly, the committee slashed her pay to less than a first-year associate.

Wage Discrimination in Big Law Firms

This isn’t the first time a female attorney has raised wage discrimination claims against a top law firm. Recently, Traci M. Ribeiro sued Sedgwick LLP, because she alleged that her wages “did not match [her] contributions to the firm.”

Women now make up 45% of law firm associates. But according to the American Bar Association, only 18% of Big Law partners are women, and they earn 80% of what their male counterparts earn. It will take courageous, high-profile women, like Kerrie Campbell, to combat this discriminatory status quo. By filing wage discrimination lawsuits, professional women (and men) can show that they deserve equal pay for equal work on every rung of the ladder to success.

Whether you are earning minimum wage or have the title Partner, wage discrimination can still happen to you. If you believe you are being compensated unfairly based on your sex, our gender discrimination attorneys at Eisenberg & Baum, LLP, can help. We will meet with you and plan a course through negotiations with your employer, the EEOC, or in court, to make sure you get the compensation you deserve. Contact us today to schedule a free consultation and get the process started to a fair wage.

Sexual Harassment of Teenagers at Work

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If you are a teenager facing sexual harassment by someone at work, you may not even know that what the person is doing is illegal. Teens and parents need to know what to look for, what to do, and who to talk to when sexual harassment happens at work.

In this blog post, I will explain how sexual harassment laws apply to teenagers at work. I will review the recent settlement, EEOC v. Hillcrest Marshall Inc. d/b/a/ Dunkin’ Donuts, and will explain how teens can fight back against sexual harassment in their jobs.

Sexual Harassment Isn’t Just Teasing – It’s Illegal

When teens enter the workforce, they often don’t know what is normal behavior for supervisors, coworkers, or even customers. When a job early in a person’s working life turns hostile, he or she may not even recognize that the behavior is a problem. Parents of employed teenagers need to make their kids’ safety a priority. Before your high schooler takes an after-school job, make sure they know that sexual harassment isn’t okay. It’s illegal.

The Equal Employment Opportunity Commission (EEOC) is a federal agency in charge of enforcing civil rights laws that make sexual harassment illegal. Sexual harassment can include sexual jokes, unwanted physical contact, or sexual imagery that happens at work. The harasser can be anyone you interact with on the job – your boss, your coworker, and even a customer.

Not every passing joke will be enough to call a sexual harassment attorney, though. In general, teasing, casual comments, or one-time incidents aren’t enough to be considered illegal under the federal law. When things get more serious, or happen more frequently, it’s time to get help from a lawyer. Also, if you say “no” to requests for sexual favors and it is held against you, that can be illegal too. The EEOC will look at whether an “adverse employment decision” has been made against you (like being fired or forced to work bad shifts), or if the pattern of behavior is bad enough to create a “hostile work environment.”

What Sexual Harassment Looks Like

Teens often have a hard time telling the difference between casual banter and sexual harassment. Here are some things you should watch for:

  • Requests to have sex including oral sex or any sexual touching
  • Unwanted physical contact (groping, spanking, pinching, or caressing)
  • Jokes about a person’s sexuality (or virginity) or sexual orientation (even if they are incorrect)
  • Requests that a person wear revealing clothing beyond the office dress code
  • “Compliments” about a person’s attractiveness

Dunkin’ Donuts Settles Sexual Harassment Lawsuit with Teenage Employees

It can be especially hard for parents to believe that these kinds of things still happen. But the EEOC investigates thousands of sexual discrimination and harassment claims every year. Many involve young workers, including teenagers.

In August 2016, the EEOC announced a settlement with Hillcrest Marshall Inc., the company that runs Dunkin’ Donuts, because a store manager sexually harassed teenage and young adult women working in his store. According to the EEOC complaint, the manager talked about his genitals, tried to kiss a 20 year old employee, and pressured her to have sex. She refused and as a result he hit her, swore at her, and yelled at her. When she reported his behavior to the police, she was fired in retaliation for resisting his sexual advances.

The EEOC and Hillcrest Marshall agreed to a settlement. Over the next 3 years, the courts will make sure Dunkin’ Donuts never hires that manager again. The company will also train all its store managers about sexual harassment and will create an anti-discrimination policy and complaint procedure so that concerns can be taken to a senior manager outside the store. The teenagers and young women who suffered the harassment will also receive $150,000.00 in damages.

What Teenagers Should Do If They Face Sexual Harassment

If you are a teen and you see sexual harassment happening to you or someone else at work, the first thing you should do is object. Remember, it only counts as sexual harassment if it is unwanted. So if you see something, say something. Tell your boss that you don’t want to make that kind of jokes anymore. And by all means, never feel like you need to say yes to sexual advances just to keep your job.

You should also tell your parents about it, even if you aren’t sure whether the behavior is serious enough to count as sexual harassment. Your mom or dad can help you gain perspective on what happened, decide your next steps, and figure out how to report the bad behavior at work.

Next, report it. Many workplaces have non-discrimination policies that protect you if you file a complaint. If the person doing the harassment is a superior, go above that person’s head and complain to his or her boss. Remember, sexual harassment isn’t just uncomfortable, it’s illegal, so reporting it is the right thing to do.

Retaliation is Real, and It’s Illegal Too

Sometimes, when a manager or supervisor learns that you reported sexual harassment, he or she will try to make your life harder. Your boss might change your hours, give you short notice of your shifts, cut your hours, or even fire you. Don’t worry. The same law that protects you against sexual harassment also makes retaliation for complaints illegal. If that happens, a lawyer may be able to help you get your job back and make sure you are treated with respect.

When Teens and Parents Should Hire a Sexual Harassment Attorney

If your employer refuses to make changes at the workplace, it’s time to get a lawyer involved. The sexual harassment attorneys at Eisenberg & Baum, LLP, will meet with you and your parents to discuss your options. Depending on what happened to you they might recommend talking to your employer (this is called negotiating), filing a complaint with the EEOC, or going directly to court. No matter which route you take, our legal team will be there with you until the case is closed. It starts with a free consultation. If you have been the victim of sexual harassment contact us online to schedule a meeting.

Racist Jokes at Work: When Is It Discrimination?

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When racist jokes fly in the workplace it can make every shift uncomfortable. When does racial harassment cross the line into discrimination? Is there anything you can do to stop the jokes?

In this blog post, I will discuss the federal laws against racial discrimination. I will explain what it takes to form a racial harassment claim, and will give some examples of when racist jokes create a hostile workplace.

Racist Jokes and Racial Harassment

Racial harassment is unwelcome verbal or physical conduct based on or happening because of your race or national origin. Racial jokes are one form of racial harassment, as is stereotyping. Just like sexual harassment, racial harassment can be illegal under Title VII of the Civil Rights Act of 1964 if it results in an adverse employment decision (like firing, wages, or shift assignments), or if it is severe or frequent enough to create a “hostile work environment.”

Racial slurs, physical threats, and racial jokes have all been held to create a hostile work environment, but it depends on the circumstances, and how the management responds to complaints. Here are a few examples of when racist “jokes” amounted to discrimination.

Physical Racial Jokes Cross the Line Quickly

When racial jokes include physical elements, they can quickly turn into discrimination. When coworkers hung a noose in a black employee’s work area, that was severe enough to count as discrimination. EEOC v. A.C. Widenhouse Inc., No. 1:11-cv-498 (M.D.N.C. verdict filed Jan. 28, 2013). In another case, graffiti including racial slurs was painted on a minority worker’s truck. That too, counted as discrimination. EEOC v. Yellow Transp. Inc., No. 09 CV 7693 (N.D. Ill. preliminary approval granted June 28, 2012).

Casual Working Environments Often Require Notice

If you work in an office or shop where everyone uses foul language, and where racial slurs are part of the atmosphere, you will need to take an extra step to protect your rights. By putting your coworkers on notice that race-based humor offends you, you can protect yourself and lay the groundwork for a racial discrimination case.

Supervisor’s Comments Held to Higher Standard

If the racist jokes are made by a supervisor, boss, or manager, it may take less to meet the requirements for racial discrimination. That is because a supervisor’s words carry greater weight and have more effect on the workplace than a person’s coworkers. When a supervisor used racial epithets about the intelligence and behavior of African American employees, the court said it was discrimination. EEOC v. AA Foundries Inc., No. 11-792 (W.D. Tex. judgment and injunction entered Oct. 9, 2012)

What To Do if Racial Jokes Make Your Workplace Hostile

If you feel like you are the butt of racial jokes in your workplace, there are a few things you should do.

Complain to Management

One of the best ways to demonstrate that racial jokes are unwanted is to complain to the management. Your supervisors are legally required to take steps to end racial harassment in the workplace, but only if they know about it. You may be speaking for coworkers who aren’t able to object themselves. If no one objects, you may all have to continue to endure a hostile working environment.

Do Not Engage

Most racial discrimination cases aren’t one-time events. Often, courts require a pattern of behavior before racial jokes cross the line. That can put employees in the uncomfortable position of enduring racial commentary while waiting for the management to respond. It can be tempting to play along or return verbal punches. But doing so can destroy a person’s racial discrimination case. By trading jabs with your harasser, you make it seem like the comments are welcome, or not offensive. Do not engage! Instead, walk away or reiterate your complaints.

Document Everything

Documentation is the key to proving a racial discrimination case. Every time you complain to management or your union representative do it in writing (including email). Keep a copy for yourself. You can also start a journal, which will help you record day by day what racial jokes were used, who used them, and what happened because of them.

Talk to a Racial Discrimination Attorney

If your complaints go unheard, it’s time to get a professional involved. By talking to an experienced racial discrimination attorney early in the process, you can preserve your rights and improve your chances of changing the nature of your working environment.

At Eisenberg & Baum, our racial discrimination attorneys can help you negotiate with your employers, file Equal Employment Opportunity Commission (EEOC) complaints, and even go to court to protect your rights. We will fight to end racial harassment in your office. Don’t wait until the discrimination goes “too far.” Contact us today for a free consultation and start on the path to a racially sensitive workplace.