RETALIATION/REPRISAL IS EASIER TO PROVE THAN EEO HARASSMENT
Not long ago we wrote about how EEOC rejected an employee’s claim of a hostile work environment, but sustained his charge of EEO reprisal based on the same facts. The point of that post was that it is easier to prove reprisal than hostility. A new EEOC decision makes that point again, but based on circumstances that might surprise you. The employee did not have to prove he was passed over for a permanent promotion; it was sufficient to show that the agency failed to give him temporary or acting assignments which would have improved his experience within the Agency and supported a lateral career move. Most unions never even think about challenging how these temporary career-building assignments are passed out.
EEOC opened its analysis making the point that when an employee claims reprisal based on some adverse action the agency took against him or her that action “need not qualify as ‘ultimate employment actions’ or materially affect the terms and conditions of employment to constitute retaliation…Instead, claims based on statutory retaliation clauses are reviewed ‘with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter … complainant or others from engaging in protected activity.’” (In other words, most EEO complaints require that the agency have taken a tangible, permanent action against an employee, e.g., termination or non-selection for promotion. That is not required in retaliation cases.)
Moreover, “the alleged retaliatory actions need not impact a term, condition, or privilege of employment. A complainant need only show that a materially adverse action ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” A common example is where a manager excludes an employee from formal or even informal meetings because of the employee’s anti-discrimination advocacy, support or charge. EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016).
The employee in this case, a Treasury Department Revenue Agent/Accountant, was given $15,000 to compensate for the stress of suffering retaliation, $23,000 in legal costs, and the assurance that EEOC was requiring the agency to consider disciplining the offending supervisor.
So, the bottom line here for any union rep helping an employee file a EEO grievance or charge related to how s/he was treated after taking some anti-discrimination action is to at least allege reprisal or retaliation. Do not simply make the claim that the agency has created a hostile work environment. For more details, check out Carroll R., v. Janet L. Yellen, Dep’t. of the Treasury (Internal Revenue Service), EEOC l No. 2020002891 (2022)
