Sexual Harassment and Employer Retaliation

Fear of employer retaliation is one of the primary reasons people do not come forward after they were sexually harassed at work. Retaliation occurs when an employer punishes an employee for reporting sexual harassment, or otherwise asserting the right to a discrimination-free workplace. (Sexual harassment is considered a form of discrimination.) The person responsible for the harassment may have the power to demote or fire the harassed employee. If the employee perceives that his or her job and financial security are at stake, he or she may choose not to report the harassment. In some cases, the supervisor or employer may expressly threaten to fire an employee if the incident is reported, thus, underlining this fear.

Thankfully, there are protections in place for employees who have been sexually harassed in the workplace. The Equal Employment Opportunity Commission (EEOC) prohibits the firing of an employee who has reported sexual harassment for retaliatory or discriminatory reasons, for the duration of the EEOC's investigation of the claim. If it is uncovered that an employer and/or supervisor retaliated or threatened retaliation, they could face additional penalties from the EEOC or direct management.

Federal, state and local laws are all in place to protect employees from retaliation on the basis of sexual harassment.

What is Considered Employer Retaliation?

Employer retaliation includes demoting, firing, exclusion from workplace activities, sabotage, unjustly chastising, scrutinizing or verbally abusing an employee who has reported harassment or intends to report harassment to the EEOC. It is specifically characterized as "any materially adverse action" against an employee who took action to report discrimination. Critique, snubs, justifiably negative comments and petty slights do not rise to the level of employer retaliation and are generally not punishable by the EEOC, even in the context of sexual harassment investigation. However, the employer may not engage in activity that would discourage the employee or other employees from reporting discrimination or harassment in the future. If an incident of employer retaliation is in dispute, the EEOC will review and evaluate it.

EEOC Types of Retaliation

  • reprimand the employee or give a performance evaluation that is lower than it should be;
  • transfer the employee to a less desirable position;
  • engage in verbal or physical abuse;
  • threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police);
  • increase scrutiny;
  • spread false rumors, treat a family member negatively (for example, cancel a contract with the person's spouse); or
  • make the person's work more difficult (for example, punishing an employee for an EEO complaint by purposefully changing his work schedule to conflict with family responsibilities)
  • take any of the above adverse action against another employee closely associated with an employee who reported a sexual harassment claim, such as a spouse, friend or relative employed in the same company
  • disparaging the employee in the media or to others

What is Not Considered Employer Retaliation?

The EEOC does not protect employees from demotion or discharge on other grounds. If an employer wishes to terminate or discipline their employees for legitimate, nondiscriminatory, non-retaliatory reasons, they are free to do so. Although sexual harassment is illegal, a harassed employee must still comply with the rules of their workplace and render the duties of their job (unless compromised by sexual harassment.) They are not excused from behaving professionally, respectfully and diligently in the workplace, unless the circumstances of the sexual harassment case somehow change the nature of the job (i.e. who they report to, where/when/how they conduct their daily duties) or require them to seek time off. If an employer fires their employee for legitimate failure to complete their job in an effective and timely manner (or other legitimate reasons such as theft, dishonesty, violating company policy, etc), the EEOC cannot shield the employee from disciplinary action or dismissal.

If an employee threatens violence or other illegal activity because they were sexually harassed, this is not protected by the EEOC. The EEOC exclusively protects employees from retaliation when they take action to report or complain about sexual harassment. The victim can threaten to file suit, as this conduct is still a protected response to sexual harassment. However, if an employee otherwise responds to sexual harassment in an illegal manner, by threatening violence, blackmail, or other illegal means, the EEOC will not protect them in the event they are dismissed, demoted or otherwise retaliated against - this would be considered just and appropriate action on the part of the employer. If an employee was sexually harassed, they should exclusively try to rectify the situation by appropriately reporting it, filing a complaint, or speaking with the necessary parties.

To establish that illegal employee retaliation has occurred, the retaliation claim must have the following elements:

  1. Protected activity:
    1. participation in an EEO process;
    2. opposition to discrimination;
  2. Materially adverse action taken by the employer; and
  3. Requisite level of causal connection between the protected activity and the materially adverse action.

Protected Activity

Protected activity is defined as making a claim, testifying, assisting or participating in any manner in an EEOC investigation, hearing or proceeding. An example would be filing a claim of sexual harassment.

Opposition is defined as any reasonable, good faith, implicit or explicit statement that an employee disapproves of what he or she believes is workplace discrimination or sexual harassment. Opposition may also include: complaining or threatening to complain about alleged discrimination against oneself or others; providing information in an employer's internal investigation of an EEO matter; refusing to obey an order reasonably believed to be discriminatory; advising an employer on EEO compliance; resisting sexual advances or intervening to protect others; passive resistance (allowing others to express opposition); and requesting reasonable accommodation for disability or religion.

The element of "good faith" is particularly important in these cases, as the merit of the case has a great deal to do with whether or not the claim was made in good faith. The EEOC provides two examples to illustrate the difference between a claim made in good faith and a claim not made in good faith:

Example 1 - Protected Opposition - Reasonable Good Faith Belief

An employee complains to her office manager that her supervisor failed to promote her because she declined his offer for a date, after an apparently less qualified man was selected. Because the complaint was based on a reasonable good faith belief that discrimination occurred, she has engaged in protected opposition regardless of whether the promotion decision was in fact discriminatory.

Example 2 - Not Protected Opposition - Complaint Not Motivated By Reasonable Good Faith Belief

Same as above, except the job sought by the employee was in accounting and it required a CPA license, which she lacked and the selectee had. She knew that it was necessary to have a CPA license to perform this job. She has not engaged in protected opposition because she did not have a reasonable good faith belief that she was rejected because of sex discrimination.

Materially Adverse Action

If adverse action is taken against an employee for participation or opposition and could reasonably deter another employee from reporting discrimination, it is considered legally actionable. The action could be work-related and usually is, but the EEOC also recognizes materially adverse actions that are not work-related and have no tangible effect on employment. The EEOC will conduct a fact-driven analysis of this retaliation to determine if it would in fact deter other employees from reporting discrimination in the future.

Causal Connection

If an employer takes adverse action against an employee, there must be a causal relationship between the adverse action and the employee's opposition to discrimination (i.e., harassment claim). Retaliation is only unlawful if a causal connection can be established between the harassment claim and the alleged retaliation.

An employer may supply an explanation for the adverse action that is unrelated to the harassment claim. If this explanation is proven false, retaliation can be inferred.

What if the EEOC Rules that Sexual Harassment Did Not Occur?

Even if the EEOC or another local, state or federal agency concludes that sexual harassment did not occur, the employee is still protected from retaliation for having reported it, so long as they believed in good faith that they were sexually harassed. Therefore, if the EEOC finds that a sexual harassment claim was without merit, it is still illegal for the employer to take adverse action against the reporting employee if that employee truly believed harassment occurred. Although no one would be held liable in this case, the employee would remain shielded from retaliation on the grounds of having reported a claim.

What Might Cause Employer Retaliation?

According to the EEOC, it is possible (and illegal) for employers to retaliate against the following activities and behaviors:

  • filing or being a witness in an EEOC charge, complaint, investigation, or lawsuit.
  • communicating with 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 accommodation of a disability or for a religious practice.
  • asking managers or co-workers about salary information to uncover potentially discriminatory wages.  

Although not all explicitly related to sexual harassment, it is best to be aware of the types of activities and behaviors which employees might retaliate against, but are legally prevented from doing so.

When to Hire An Attorney For Sexual Harassment and Employer Retaliation

Everyone deserves a fair, discrimination- and harassment-free workplace. If you have a sexual harassment claim, and your employer took retaliatory action against you and was not properly reprimanded, you can hold them accountable by filing a lawsuit. As much as 75% of employees who speak out experience retaliation, according to the EEOC. Contact trial attorneys Gilman and Bedigian today for a free consultation to discuss your case.

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