Federal equal employment opportunity laws protect applicants and employees from retaliation for certain activities connected to employment discrimination.

The U.S. Equal Employment Opportunity Commission (EEOC) refers to these actions as protected activity.

According to the EEOC, retaliation occurs when an employer takes a materially adverse action because an applicant or employee asserted rights protected by EEO laws (U.S. Equal Employment Opportunity Commission [EEOC], 2016).

Here is what the EEOC’s guidance says in plain English.

What is protected activity?

The EEOC generally divides protected activity into two categories:

• Participating in an EEO process

• Reasonably opposing conduct believed to violate an EEO law

Examples identified by the EEOC include:

• Filing an EEO complaint

• Serving as a witness or otherwise participating in an EEO matter

• Complaining about alleged discrimination against oneself or others

• Providing information during an employer’s internal EEO investigation

• Refusing to follow an order reasonably believed to be discriminatory

• Resisting sexual advances or intervening to protect someone else

• Requesting a reasonable accommodation for a disability or religious practice

• Raising concerns about compensation disparities related to EEO protections

(EEOC, 2016)

Does someone have to file an EEOC charge to be protected?

No.

The EEOC says participation can include involvement in an employer’s internal EEO complaint process, even when a formal discrimination charge has not yet been filed with the agency.

Opposition to perceived discrimination can also be protected when it is informal.

The EEOC says a person does not necessarily need to use legal terms such as “discrimination” or “harassment.” For opposition activity, the person generally must have a reasonable, good-faith belief that the conduct being opposed is unlawful or could become unlawful if repeated (EEOC, 2016).

What is a materially adverse action?

The EEOC describes a materially adverse action as one that might deter a reasonable person from engaging in protected activity.

The action does not necessarily have to involve firing, demotion, or another direct employment decision.

Depending on the facts and circumstances, the EEOC identifies examples that may include:

• Work-related threats, warnings, or reprimands

• Negative or lowered performance evaluations

• Transfers to less desirable work or locations

• Increased scrutiny without justification

• Removing supervisory responsibilities

• Abusive verbal or physical behavior

• Making false reports to government authorities or the media

• Threatening certain adverse actions against a close family member

(EEOC, 2016)

The EEOC emphasizes that whether an action is materially adverse depends on the facts and circumstances of the particular case.

It also states that petty slights, minor annoyances, trivial punishments, or other actions unlikely to discourage protected activity generally do not meet the materially adverse standard.

What if the original discrimination complaint is unsuccessful?

Participation in an EEO process can still be protected even when the underlying discrimination allegation does not succeed.

The EEOC states that an employer cannot punish an applicant or employee for participating in an EEO matter even if the underlying discrimination allegation is unsuccessful or untimely (EEOC, 2016).

The EEOC’s small-business guidance gives a similar example: an employer may not fire an employee because the employee filed an EEOC discrimination charge even if the EEOC later concludes that the underlying charge lacks merit (EEOC, n.d.).

Can an employer still discipline someone who made a discrimination complaint?

Yes.

The EEOC makes clear that participation in or opposition to discrimination does not give an employee permission to neglect job duties, violate workplace rules, or engage in misconduct.

Employers may still discipline or terminate employees for legitimate reasons such as poor performance or improper behavior, even when the employee previously engaged in protected activity.

Whether an employment action was motivated by a legitimate reason or retaliation depends on the facts of the case (EEOC, 2016).

Who can be protected from retaliation?

EEOC guidance states that retaliation protections can apply to:

• Job applicants

• Current employees

• Former employees

The EEOC also discusses situations involving actions taken against family members or close associates in order to retaliate against someone who engaged in protected EEO activity (EEOC, 2016).

What does the EEOC say about preventing retaliation?

The EEOC identifies several practices employers may consider to reduce the likelihood of retaliation.

These include:

• Maintaining a written anti-retaliation policy

• Providing managers, supervisors, and employees with information about the policy

• Giving managers guidance on handling discrimination allegations while carrying out their duties

• Checking in with employees, managers, and witnesses during an EEO matter when appropriate

• Documenting the reasons for consequential employment decisions

(EEOC, 2016)

The EEOC’s small-business guidance also recommends informing employees that retaliation is prohibited and responding promptly and effectively to discrimination complaints (EEOC, n.d.).

These are practices identified by the EEOC, not Diversity.com-created legal requirements.

What does the EEOC guidance show?

Under the EEOC framework summarized here, a retaliation claim involves three core elements:

1. An individual engaged in protected activity

2. The employer took a materially adverse action

3. The evidence shows that retaliation caused the employer’s action

The specific facts and circumstances matter when determining whether retaliation occurred (EEOC, 2016).

From Workplace Rights to Employment Opportunity

EEOC guidance explains federal protections related to retaliation for protected EEO activity.

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Frequently Asked Questions

What is workplace retaliation?

The EEOC says retaliation occurs when an employer takes a materially adverse action because an applicant or employee asserted rights protected by federal EEO laws.

Is an internal discrimination complaint protected?

It can be.

The EEOC states that participation in an employer’s internal EEO complaint process can be protected even before a formal EEOC charge is filed.

Can someone be protected if the discrimination complaint is unsuccessful?

Yes.

The EEOC says participation in an EEO matter can remain protected even when the underlying allegation is unsuccessful.

Can an employer still discipline an employee who complained about discrimination?

Yes.

The EEOC states that protected activity does not shield an employee from legitimate consequences for poor performance, misconduct, or other non-retaliatory reasons.

Does every unpleasant action after a discrimination complaint count as retaliation?

No.

The EEOC uses a materially adverse standard and says the determination depends on the facts and circumstances. Petty slights and minor annoyances generally do not meet that standard.

Source Note:

The EEOC identifies its Questions and Answers: Enforcement Guidance on Retaliation and Related Issues as a technical assistance document.

The agency states that the document does not have the force and effect of law and is not intended to bind the public. It is intended to explain existing legal requirements and agency policies.

This article summarizes that EEOC guidance in plain English and does not provide legal advice.

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Sources & References

• U.S. Equal Employment Opportunity Commission. (2016, August 26). Questions and answers: Enforcement guidance on retaliation and related issues. https://www.eeoc.gov/laws/guidance/questions-and-answers-enforcement-guidance-retaliation-and-related-issues

• U.S. Equal Employment Opportunity Commission. (n.d.). What is retaliation and how can I prevent it?https://www.eeoc.gov/employers/small-business/8-what-retaliation-and-how-can-i-prevent-it