Claims of retaliation—mostly in the forms of demoting, disciplining or terminating employees—are the charges most frequently filed with the U.S. Equal Employment Opportunity Commission (EEOC). A recent lawsuit reminds employers that refusing to rehire someone who filed a discrimination claim against the company is also illegal.
The EEOC charged that Stan Koch & Sons Trucking violated federal law by not allowing a former employee to reapply for a job because she had previously filed a claim of sex discrimination against the company.
According to the EEOC suit, the plaintiff first argued that the Minneapolis-based company fired her based on her gender. She claimed that she was let go after failing a strength and range-of-motion test following an on-the-job injury in April 2013. At that time, she was told she could reapply for her job in the future, she told the EEOC.
She filed her first complaint with the agency in December 2013. She reapplied for a driver position at Koch & Sons in April 2014 but was told her application was being put on hold because of the pending legal matters with the EEOC.
That alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination, including retaliation for filing a charge of discrimination with the EEOC.
“Refusing to hire an individual because she filed an EEOC charge is retaliation,” said Gregory Gochanour, the EEOC’s regional attorney in Chicago.
Koch & Sons vice president and general counsel Kevin Giebel said the company will be responding to the allegations and “strongly believes it violated no laws in this matter.”
[SHRM members-only toolkit: Avoiding Adverse Impact in Employment Practices]
Retaliation occurs “when an employer takes an adverse employment action because an individual has engaged in a protected activity,” said Eric Meyer, an attorney with FisherBroyles in Philadelphia. “Filing a charge with the EEOC would be participating in an EEO process and thus a protected activity. [So is] filing a lawsuit alleging workplace discrimination. If an employer takes an adverse employment action because the individual filed a charge or sued the company for discrimination, then that is retaliation.”
Meyer added that adverse employment actions can include firing or failing to promote or hire an employee, other discipline, “or really anything that would chill an individual from addressing discrimination at work.”
Take EEO Complaints Seriously
Meyer stressed that retaliating against an employee for making an EEO complaint is the absolute worst course of action for an employer to take. “HR should take the complaint seriously and address it,” he said. “That could involve an investigation consisting of reviewing applicable policies and procedures and gathering facts and information from interviews and other documents. Ultimately, the company must take steps that are reasonably designed to end the complained-of behavior. It is also important for HR to communicate this to the victim so that he or she knows that the company did take the complaint seriously.”
If an employee has engaged in protected activity but discipline is legitimately required for some other infraction, then discipline is the right course of action, Meyer said. “However, that assumes that the documentation and other support, like written policies and procedures, are there,” he said. “If the infractions are undocumented, you can still discipline, but it’ll be a tougher sell to the jury if or when the employee sues for retaliation.”