The federal government is stepping up efforts to end workplace retaliation.
In November 2021, the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) launched a joint initiative to raise awareness about retaliation issues when workers exercise their protected labor rights.
The initiative aims to educate workers on and protect them from unlawful retaliatory conduct, as well as engage with employers, business organizations, labor organizations and civil rights groups on these issues in the coming year.
For people of color, the initiative could be particularly impactful.
“While applicants and employees in all industries experience retaliation, research shows that workers of color are more likely than others to be fired when they report the violations,” said EEOC Chair Charlotte A. Burrows. “The fear of economic harm leaves some workers feeling less willing to risk retaliation by challenging workplace violations.”
Stories of Retaliation Against People of Color
Retaliation occurs when an employer punishes a worker for engaging in legally protected activity. It can include any negative job action, such as demotion, discipline, firing, salary reduction, or job or shift reassignment.
In February, the EEOC, DOL and NLRB hosted an online dialogue titled “Ending Retaliation: Securing Racial and Economic Justice in the Workplace” to discuss the impact of employer retaliation on low-wage workers who may also suffer racial discrimination in the workplace.
Seema Nanda, the U.S. solicitor of labor, called workers “our nation’s eyes and ears” for identifying workplace discrimination, inequities, violations and hazards. However, many employees who experience retaliation fear reporting the act.
“Our agencies recognize we are only effective when workers feel safe coming forward,” Nanda said. “And we are really committed to ensuring that you feel safe speaking up, and we are here to investigate and intervene if there is retaliation or the threat of retaliation when you do come forward.”
Agency representatives said some employers have become increasingly brazen in their threats against workers who seek to exercise their rights. Companies have threatened to call immigration authorities, fire workers or blacklist employees from future employers. They’ve even intimidated their families through texts, letters and face-to-face communication.
Jessica Looman, acting administrator of the DOL’s Wage and Hour Division, said it recently helped a man who was harassed and bullied by his company after he requested the overtime pay owed to him.
He had been discriminated against for his national origin, Looman said. He had also been a victim of wage theft and unlawful retaliation for raising his rights under the Fair Labor Standards Act.
“While never acceptable, retaliation is particularly insidious for workers from marginalized communities,” Looman said.
Another case involved hundreds of Black Somali Muslims working at a meat processing plant in Greeley, Colo. These workers were consistently harassed due to their race, national origin and religion. Colleagues and managers called them vulgar names and even hurled meat and other products at them.
However, most of the victims couldn’t speak fluent English, were illiterate or didn’t know about their rights.
“Despite how terrible these folks were being treated, when we started our case, people were very reluctant to participate,” said Mary O’Neill, the regional attorney for the Phoenix District Office of the EEOC.
Many immigrants suffer in silence. These foreign-born workers often fear speaking up because they may lack work authorization or hold a temporary authorization that’s tied to a particular employer, increasing their vulnerability.
“[Workers] are protected under the EEOC’s laws regardless of their work authorization status, regardless of their immigration status, regardless of their citizenship,” O’Neill said.
Retaliation affects all employees. The EEOC recently handled a case in which employees who displayed Black Lives Matter face masks were racially harassed by managers and co-workers. In a separate case, a former Home Depot employee said the company told him to either stop wearing a Black Lives Matter logo on his apron or quit.
“As our nation recovers from a pandemic that disproportionately affected vulnerable workers and workers of color, our agencies joining together now can really make a difference if people do come forward,” Burrows said. “And we’re committed to doing that.”
Preventing Retaliation Claims
Businesses can face legal liability for claims of retaliation. But engaging in protected equal employment opportunity activity does not shield an employee from discipline or discharge, according to the EEOC.
Employers can discipline or terminate workers if motivated by nonretaliatory and nondiscriminatory reasons that would otherwise result in such consequences. However, participating in a complaint process is protected from retaliation under all circumstances.
Companies cannot respond to equal employment opportunity activity in a manner that would discourage someone from resisting or complaining about future discrimination. In 2018, SHRM outlined ways for businesses to prevent retaliation claims and explained the importance of training HR professionals to recognize situations in which retaliation is likely.