In 1998, 24 percent of claims handled by the EEOC were related to workplace retaliation. In 2015, that grew to 45 percent, which made it the most common type of complaint brought to the EEOC. Retaliation is defined as an employer taking a materially adverse action against an employee after engaging in a protected activity. However, those terms may be applied in a relatively broad manner.
While courts have ruled that an adverse action is something that impacts the conditions of employment, the EEOC goes even further. It claims that an adverse action could be anything that deters a normal person from engaging in protected activity. This is true whether or not it has anything to do with the employee's job duties. Furthermore, the EEOC believes that filing a complaint against an employer is protected speech even if the employee knows that the allegations may not be true.
This may put employers in a difficult position because they could not legally terminate an employee even if a charge is baseless or false. However, some rulings have found that complaints that are totally without merit do not count as protected speech. To help employers better understand and comply with employment law, the agency has included new guidance related to retaliation against employees as well as fact sheets to help small business owners understand their obligations.
Employees generally have the right of protection against termination if they take part in a protected activity. For instance, if an employee files a compliant against an employer, that generally cannot be grounds for termination. Those who experience a wrongful termination after taking part in a legally protected activity may wish to consult with an attorney in order to learn what recourse may be available.