M. Retaliation Discrimination

Employees who legitimately assert discrimination rights by filing charges in federal court, with the EEOC, or state agencies, are protected from adverse action in retaliation by any employer. If the individual reasonably believes that a Title VII violation was committed, the employer should not take any action adverse to the rights of the employee, such as failing to promote, discharging, or unduly critizing the employee, as a direct result of that action.

Acts taken by the employer as a direct result of the employee's filing charges or threatening to go to the EEOC, or bringing a lawsuit are viewed by the courts as retaliatory. Types of acts that fall into this category include:

• Transfer or reassignment that is undesired (even with no loss in pay or benefits);
• A transfer out of the country;
• Threats, when repeatedly made and when disruptive to the worker's job performance;
• Harassment on the job;
• Giving unfavorable references to a prospective employer, or otherwise interfering with the employee's efforts to obtain a new job;
• Interfering with an employment contract;
• Attempting to persuade a current employer to discharge a former employee;
• Firing the employee or forcing retirement by eliminating the position and offering only lesser alternative positions;
• Denying or suspending severance payments;
• Retroactively downgrading an employee's performance appraisals and placing derogatory memos in the employee's personel file;
• Refusing to promote or reassign an employee or adding preconditions for a requested reassignment;
• Transferring the employee to a job with poorer working conditions;
• Increasing the workload without good reason;
• Adversely changing the company vacation policy;
• Delaying the distribution of tax and social security forms.

TIP: Many employers who are accused of discrimination have valid defenses and can overcome such charges. However, they foolishly take steps deemed to be in retaliation against the individual's freedom to pursue such claims, and eventually suffer damages resulting from the retaliatory actions, not the alleged discrimination! Instruct management and supervisors never to take adverse action against an employee or former employee when a formal discrimination charge has been filed.

Counsel Comment #117: Research the law in your state regarding family leaves since states with tougher sanctions and penalties than the FMLA must be followed. Do not feel secure if your particular state currently has no legislation in this area,