The Equal Employment Opportunity Commission reports that the agency received a record number of discrimination charges in 2011. Once again, charges of retaliation were the most common, with race discrimination charges a close second.
While we note that Wisconsin data for 2010 mirrors this trend, the report includes only nationwide data. The EEOC enforces federal laws. State agencies enforce complaints made under state statutes, like the Wisconsin Fair Employment Act.
The federal laws include Title VII of the Civil Rights Act, the Fair Labor Standards Act and the Family and Medical Leave Act, and each has a rule against retaliation. Employers may not take an adverse employment action — such as termination, suspension or demotion — against an employee if that employee complains of discrimination, acts as a witness in an investigation or files a charge with the EEOC.
The U.S. Supreme Court has added a few protected activities of its own. An employer cannot retaliate against a person who is in a close relationship with another worker involved in a protected activity like those listed above. And, the Court says the FLSA covers both oral and written complaints, even if made to the employer.
It is important to remember that a retaliation claim must be based on a protected activity; after that, the processes diverge. The investigation and adjudication of the two claims are separate, and the outcome of one does not have any bearing on the outcome of the other.
Say an employee files a sexual harassment complaint and two weeks later loses her job. Her boss says she hasn’t been meeting her production goals, so she has to go. She knows the records show that she has surpassed those goals every day for the last year, so she files a retaliation claim.
The investigations are unrelated. If the EEOC finds that the bad behavior didn’t rise to the level of sexual harassment, that claim is dismissed. The retaliation investigation continues, though, because the two incidents occurred at different times for different reasons and were (alleged) violations of two different laws.
The total number of charges in 2011 was 99,947. More than 37 percent were for retaliation; race discrimination accounted for more than 35 percent. Both race and gender discrimination charges decreased from 2010. Disability and age discrimination charges, however, increased.
Alan Olson writes this web-log to provide helpful information regarding employment law cases. He practices employment law throughout the United States from his offices in New Berlin, Wisconsin. Attorney Olson may be contacted at [email protected] with questions about the information posted here or for advice on specific retaliation claims.
EEOC, “Private Sector Bias Charges Hit All-Time High,” Jan. 25, 2012
HR.BLR.com, “Retaliation Leads the Way in Workplace Discrimination,” Joan S. Farrell, J.D., Jan. 31, 2012