According to the United States Equal Employment Opportunity Commission ("EEOC"), workplace retaliation is the most frequently alleged basis for discrimination on the federal level.
Workplace retaliation occurs when an employer seemingly punishes or takes any adverse action against an employee after the employee engages in a legally protected activity. Adverse employment actions can include, but are not limited to, termination, a negative performance review, disciplinary action, transfer or relocation, or reduction in compensation and/or benefits.
What is Legally Protected Activity?
According to the EEOC there are several activities that constitute "protected activity." They are as follows:
- filing or being a witness to an EEOC charge, complaint, investigation, or lawsuit;
- complaining to a supervisor or manager about employment discrimination, including harassment;
- answering questions during an employer investigation of alleged harassment;
- refusing to follow orders that would result in discrimination;
- resisting sexual advances, or intervening to protect others;
- requesting an accommodation for a disability or a religious practice; or,
- inquiring about salary information to uncover potentially discriminatory compensation practices.
For example, Jack has been harassing Jill, his subordinate, while at work. Jill reports Jack's harassing conduct to human resources. As a result of her report, Jill is reassigned to a lower paying position that does not report to Jack. Jill may have a claim for workplace retaliation.
Potential Defenses to Claims of Retaliation
Once an employee establishes all of the elements of a retaliation claim, the employer has an opportunity to establish a legitimate nondiscriminatory reason for the adverse action. For example, an employer may assert that it terminated an employee because of ongoing performance deficiencies.
Retaliation Litigation in Rhode Island
In 2018, Ana B. Quezada, a Rhode Island state senator, filed a lawsuit in the U.S. District Court for the District of Rhode Island against the City of Providence alleging claims of retaliation. Ms. Quezada was suspended for five (5) days after she asked the Director of Department of Inspections and Standards about the department's hiring practices. In her complaint, Ms. Quezada alleges that her Hispanic co-worker in the Department of Inspection and Standards was passed over for a job that he was qualified for. In response, the department claims that it was not hiring for the stated position and added new requirements to the job description. Ms. Quezada's claim is pending.