Complaining Employee to Collect For Psychiatric Center's Retaliation

For the relative ease in proving wrongdoing, unlawful retaliation against an employee for having complained of improper workplace conduct or conditions continues as the "go-to" accusation of choice against employers.

A worker seeking recovery for alleged discrimination or harassment must establish the employer's motivating hostility toward that person's race, gender or other protected classification. Not so with retaliation; the worker need only show that the employer fired her or him for having sincerely complained about some mistreatment regardless of any actual or intentionally offensive action.

The federal Equal Employment Opportunity Commission (EEOC) has announced a case-in-point: Texas-based Woodlands Psychiatry must pay $22,500, adopt corrective policy and conduct company-wide training stemming from its owner's termination, via text, of a chemical dependency counselor/employee for having filed a charge of discrimination.

The EEOC's regional attorney stated, "Title VII [of the Civil Rights Act of 1964] protects workers who participate in the EEOC process, especially those who seek redress from discriminatory or retaliatory conduct in the workplace by filing a charge of discrimination." The agency's lead attorney on the case added, "Retaliation against employees who report discrimination is unlawful. The Commission aggressively investigates, and, if necessary, prosecutes employers who violate Title VII's anti-retaliation provision."

While EEOC extends federal anti-retaliation standards to employers with 15 or more on payroll, the Department of Fair Employment and Housing (DFEH) enforces California's equally stringent prohibitions against businesses with as few as five employees.

Take-Aways: Through a printable brochure and other materials, EEOC offers important guidance to business for preventing retaliation claims. The DFEH posts similar assistance.

• Understand management responsibilities. Retaliation is illegal against applicants, employees or former employees for:
  • filing a complaint of discrimination with your business;
  • filing a charge of discrimination with a federal, state or local agency;
  • participating in a discrimination investigation or lawsuit (for example, serving as a witness); or
  • opposing discrimination (for example, threatening to file a charge or complaint of discrimination).
• Don't take out frustrations on the complaining employee. Treat the employee as if he or she had never reported discrimination, assisted with a discrimination investigation or lawsuit or opposed discrimination.
• Treat employees consistently. Before making employment decisions that may negatively affect the complaining employee, act consistently with past practice or with valid justification for treating the employee differently.
• Explain rules and expectations to employees. Ensure that employees understand your business's discrimination policies. Inform employees that retaliation is illegal and will not be tolerated.
• Establish an open door policy. Encourage employees to share any concerns about discrimination with management. Respond promptly and effectively to discrimination questions, concerns and complaints.
• Uphold policy across-the-boards. Ensure that company policies are followed and enforced consistently.

Tim Bowles, Cindy Bamforth or Helena Kobrin can assist with additional information.

See also:

• Tracking Down Discrimination - EEOC 2020 Report Retaliation, Disability Claims Predominate (April 16, 2021)
• Workplace Discrimination Prevention-California's Fair Employment and Housing Act, A History (March 26,2021)
• Employee Terminations - Firing Low-Performing Workers While Limiting Repercussions (April 20, 2018)
• Unlawful Retaliation Defined (September 21, 2016)

Tim Bowles
October 1, 2021