Retaliation is Leading EEO Complaint & Evolving Area of Employment Law

Did you know that relatliation in the federal workplace is the most frequently alleged basis of discrimination complaints government-wide? Check out the latest “Digest of EEO Law” which includes a special article, Retaliation: An Evolving Area of Law.

EEOC Press Release

03/27/14

New ‘Digest of EEO Law’ Issued by EEOC
Quarterly Edition Includes Variety of Key Federal Sector Decisions

WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) today announced the latest edition of its federal sector Digest of Equal Employment Opportunity Law, which is available on the agency’s website.

This quarterly publication, prepared by the EEOC’s Office of Federal Operations (OFO), features recent agency decisions and federal court cases of interest. It also includes a special article entitled, Retaliation: An Evolving Area of the Law.

  • “The Digest’s focus on retaliation should be particularly useful,” said OFO Director Carlton M. Hadden, “as that continues to be the most frequently alleged basis for EEO complaints. The article provides solid information on recent decisions and cases.”

The summer 2013 edition of the Digest contains a sampling of summaries of noteworthy decisions selected by OFO from among the volume of decisions issued by EEOC each fiscal year, including topics such as:

  • Federal Sector EEO Complaint Processing
  • Attorneys’ Fees
  • Compensatory Damages
  • Findings on the Merits
  • Remedies
  • Sanctions
  • Settlement Agreements
  • Stating a Claim
  • Summary Judgment
  • Official Time

While these summaries are not intended to be exhaustive or definitive as to their subject matter, and may not be given the legal weight of case law in citations, they are a good source of relevant information.

In addition to the quarterly Digest, Commission federal sector decisions are available on the EEOC’s website. The public may also receive federal sector information updates and news items via Twitter: @EEOC_OFO.

The EEOC enforces federal laws prohibiting employment discrimination in the public and private sectors. Further information about the EEOC is available online at www.eeoc.gov.

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  • Don’t forget to check out and register for the annual 2014 EEOC EXCEL national training event being held this year in San Diego, CA, from Aug. 12-14. Learn EEO and related best practices from the experts to help create model workplaces gov-wide. Also, join the EEOC in celebrating the 50th anniversary of Title VII of the landmark Civil Rights Act of 1964. Registration opening soon. You may follow EXCEL on Twitter @EEOC_EXCEL and on the GovLoop EXCEL page
  • Also, don’t forget to follow EEOC’s Office of Federal Operations on Twitter @EEOC_OFO (approaching 10,000 followers).

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6 Comments

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Profile Photo Earl Rice

In my Agency, and I believe the figure is, 85 or 86% of all EEO complaints are for retaliation. And, how do they handle it? Simple, they buy the filer off. You file, they offer an out of court settlement, the filer takes it and signs a gage order, and they count it as an EEO complaint favorably resolved. And, it is a long honored tradition that you don’t be a whistle blower and you don’t file any sort of a complaint. The second you do, your career is over, if not your job. It may take them a while (oh a year or so), but you will be terminated one way or another. And, it has been that way forever. That’s just the climate. So if you do file a complaint, you best be looking for a new job in a new Agency on USAJOBS the minute after you file. And, if they new Agency checks references, well you can forget about that Avenue also. Whether you work is good or bad, you reference will be bad.

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Profile Photo David B. Grinberg

Megan & Earl:

Thanks very much, as always, for sharing your valuable views and important insights. Just a reminder, as noted in a prior post, that EEOC Management Directive 110 is currently being revised to improve the overall EEO complaint process. The Commission is seeking public comments and feedback until April 25 to help make the system better for everyone. Further information on workplace retaliation is available here.

Thanks again!

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Profile Photo Mark Hammer

I recommend giving the 2010 report from MSPB, entitled “Whistleblower Protections for Federal Employees“, a read. One of the things it addresses is the extent to which employees may be less protected from “retaliation” than they may think they are. Part of that would seem to be because retaliation is identified in response to specifiable and identifiable actions/circumstances, and some fall outside that rubric or do not meet the criteria, and another part of that would seem to be because retaliation can often be somewhat diffuse and hard to point to in a clear manner. Myself, I don’t see this is a reflection of any attempt to sidestep accountability, but more a reflection of just how hard it is to draft workable comprehensive policies dealing with human incivility. We’re complicated little buggers.

The report can be found here: http://mspb.gov/studies/browsestudies.htm (scroll down for the report)

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Profile Photo David B. Grinberg

Thanks so much, Mark, for sharing that interesting MSPB report.

Another way to look at this in the employment context is that even if an employer is not held liable for the initial discrimination allegations — assuming they lack merit or are frivolous — the employer may still be liable for the alleged retaliation that may have occurred thereafter.

This is especially true in the private sector where there are many more allegations of unlawful retaliation in the workplace. Just something to chew on. Thanks again, Mark!

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Profile Photo Megan

One factor that is changing the landscape for agencies and companies that retaliate is social media. More and more complainants are getting online and sharing their stories as the complaint moves through the excruciatingly slow investigation and hearing process. Crowdfunding legal fees, crowdsourcing employee testimonials, finding additional supporting evidence via web searches, etc. is now possible because of the widespread use of social media in government. Gag orders and confidentiality agreements generally benefit the employer, so best to avoid these. The freedom to share your side of the story will keep your employer from destroying your reputation or giving bad recommendations that contradict your real abilities and areas of expertise.

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