Opposition and Retaliation—Key Components of Laws Like Title VII and the ADA

By Amy Epstein Gluck

Yesterday, the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the federal anti-discrimination and anti-harassment laws, sued a Maryland-based employer for terminating a director because she spoke out against what she believed was disability discrimination perpetuated against her subordinate employee.

The director complained to the HR Department of her company, which builds and manages retirement communities, and expressed her concerns that she and the subordinate employee would suffer retaliation for reporting the alleged discriminatory conduct.

Guess what happened next?

The company called their employment counsel? No. Well, maybe. I don’t know.

I don’t think so because the defendant company then immediately fired this director right after the complaint and claimed that her termination was part of a restructuring.

EEOC to the company: “oh no you didn’t.”

Ok, fine, that’s not what the EEOC charged; rather, it claimed the alleged restructuring was a pretext for retaliation and filed suit in the U.S. District Court for the District of Maryland—EEOC v. Erickson Living Management, LLC, Civil Action No. 1:19-cv-00585-CCB). The EEOC announced the lawsuit here.

But, wait, how could one employee complain on behalf of discrimination against another? Is that a thing?

Yes, it’s a thing. It’s called the “Opposition Clause,” and there’s one in Title VII of the Civil Rights Act of 1964 (Title VII) and the disability discrimination statute, the Americans With Disabilities Act (ADA).

Like Title VII, the ADA prohibits retaliation against an individual for opposing employment practices that discriminate based on disability or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADA.

In addition, “opposing” discriminatory employment practices must be done in good faith to be protected—the law does not protect complaints motivated by bad faith.

Retaliation And Opposing Discriminatory Treatment

Once an employee complains to the Human Resources Department or a supervisor about disability discrimination (or sex discrimination like we talked about here, or age discrimination – you get the idea), if the employer then demotes or terminates the employee, the employer can be held liable for retaliating against the employee for complaining about discrimination.

Wait, what?

It’s true! Telling or complaining to management about perceived unlawful workplace discrimination is “protected activity” under the ADA and Title VII, which both contain an anti-retaliation provision making it unlawful for an employer to subject an employee to an “adverse action” (demotion, pay cut, unfavorable shift changes, termination, etc.) when that employee has opposed any practice made an unlawful employment practice by one of these federal anti-discrimination laws.

The EEOC considers “opposition” to be complaining to anyone about alleged discrimination to oneself OR others.

As I wrote about here, reducing an employee’s compensation or job duties while offering her what is tantamount to a demotion is classic retaliation, also prohibited by Title VII and the ADA.

To make out a claim for retaliation, an employee need only demonstrate that (1) she was engaged in a “statutorily protected activity” by opposing an employment practice which she has a good faith, reasonable basis to believe is unlawful; (2) an “adverse employment action” was taken by the employer; and (3) there is some causal connection between the two.

As my partner Rich Cohen noted here, a “causal connection” is just that an adverse action followed a statutorily protected activity. Hmmm, like opposition? You bet.

Employer Takeaway

Employers want to be aware of how these situations arise and

  1. Have strong, clear anti-discrimination and anti-harassment policies and procedures set forth in your employee manuals and handbooks and follow your policy. Your handbook should describe prohibited conduct and provide examples as well as complaint procedures.
  2. Included in the EEO policy and procedures, employers want to maintain and enforce a strong anti-retaliation policy. Clarify for employees that if an employee reports conduct that could constitute disability discrimination or harassment based on race or sexual harassment or discrimination, that person will not suffer retaliation.
  3. As the EEOC has reminded employers to the following:
    • provide clear examples of retaliation that managers may not otherwise realize are actionable,
    • take steps to avoid actual or perceived retaliation, including practical guidance on interactions by managers and supervisors with employees who raise discrimination allegations;
    • institute a reporting mechanism for employee concerns about retaliation, and information as to how such concerns might be resolved; and
    • provide a clear explanation that retaliation can be subject to discipline, up to and including termination.
  4. Number 3 brings me to #4: training, training, training! Training done right is a marvelous thing. Doing it right means interactive training for employees, supervisors, C-suite, and HR staff, too, so that they can recognize, respond to, and prevent unlawful harassment (based on disability, sex, race, etc.)Training should include realistic examples, fact-based scenarios, pop quizzes, whatever. The point is: HR and supervisors must recognize poor behavior, investigate it, and then follow the company’s policies to address and correct it. Training “done right” includes ensuring that senior leaders promote anti-harassment training and anti-discrimination/ harassment policies to demonstrate the company’s commitment to enforcement of its EEO policies.

Finally, employers should remember that it is far, far, FAR easier to prove retaliation than the underlying discrimination — and  easier to create a retaliation situation if you or your staff don’t know how to deal with a charge or claim or complaint of discrimination.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.