It Happened to Me: Retaliation


What is retaliation?


Title VII of the Civil Rights Act of 1964 explains retaliation as discrimination suffered because an employee has "opposed" an employment practice made illegal under Title VII, such as sexual harassment, unequal pay, refusing to hire or promote, firing, etc. on the basis of sex.


What does the law say in Mississippi about retaliation?


There are no specific state laws in Mississippi forbidding retaliation for alleging or making a claim about sex discrimination.


However, there are federal laws that protect women by prohibiting retaliation against those who report sex discrimination. The law is called Title VII of the Civil Rights Act of 1964.


Under the federal law what is illegal?


Under Title VII of the Civil Rights Act of 1964 it is illegal "to discriminate against any ...employee...because [s]he has opposed any practice [that is] unlawful [under Title VII] or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under [Title VII]."


Who is covered by Title VII?


Any employee who works for an employer with 15 or more employees and has been retaliated against because she has alleged sex discrimination by her employer can bring an action for retaliation.


Who enforces the Title VII?


The Equal Employment Opportunity Commission (EEOC) and the courts enforce the law.


I think I was retaliated against for alleging sex discrimination in my work place. What do I do now?


If you feel you are being or have been discriminated against because you have complained of or alleged discrimination, you can file a complaint with the Equal Employment Opportunity Commission (EEOC.) They will complete an investigation on your behalf. If the commission finds "reasonable cause" to believe that discrimination has occurred, they will attempt to work with your employer to remedy the situation. The commission has 30 days to reach an agreement with your employer. If, within this time, the EEOC's efforts do not fix your employer's discriminatory behavior, you will then be able to file a lawsuit. You are also able to file a lawsuit even if, after its investigation, the EEOC does not find "reasonable cause" to believe discrimination has occurred.


For specific next steps, see How do I File a Claim.


Does it matter when I suffered retaliation?


Yes. Title VII of the Civil Rights Act of 1964 has a very strict time limit. You must file your charge with the Equal Employment Opportunity Commission (EEOC) within 180 days of being discriminated against.


Determining distinct acts of discrimination can be difficult because you may not know right away that you have been discriminated against or you might think there isn't strong enough evidence. Also, discrimination may not occur at one distinct time. Nevertheless, it is very important that you file your charge with the EEOC as soon as you suspect discrimination. If you wait too long and the retaliatory act happened prior to 180 days ago, your charge will be invalid.


How do I prove I was retaliated against for alleging sex discrimination in my work place?


If Equal Employment Opportunity Commission (EEOC) remedies prove ineffective, you can file a lawsuit in federal or state court. There is a three-part test to prove retaliation in court.


The first part has three sub-parts.

(1) You have to prove that you engaged in an activity that is protected by Title VII. These activities include opposing or speaking out against sexual harassment, unequal pay, or refusing to hire or promote, firing, etc. on the basis of sex.

(2) The second element you have to prove is that you suffered an adverse employment action (see below).

(3) Third, you have to prove that the adverse employment action (second sub-part) you suffered occurred because you engaged in a protected activity (first sub-part). The court calls this proving a "causal connection" between your behavior (filing a charge for example) and your employer's behavior (reassigning your duties, for example.)


After you prove these three elements, your employer has a chance to defend itself by proving to the court the adverse actions you suffered were for a "legitimate nondiscriminatory reason."

Then you will have a chance to prove to the court the reasons your employer gives are merely pretextual. This means you must prove the reasons are just invalid excuses.

For more information on the steps involved in proving discrimination under Title VII at trial, see Disparate Impact/Treatment.


What are EXAMPLES of adverse employment actions that count as retaliation?


Under certain circumstances, the court has found reassignment of job duties and suspension without pay to be retaliatory. Not all reassignments of job duties constitute retaliation, but the court will determine if a reassignment is adverse by looking at the particular circumstances of the situation.


Generally, the court defines retaliatory to mean actions that are harmful in such a way that a reasonable person would find them "materially adverse" and would dissuade that person from making or supporting a discrimination charge. The Supreme Court has explained that to be an effective law, Title VII needs people to file complaints. Therefore, any conduct that would deter a reasonable person from filing a complaint could be considered retaliatory.


Also, retaliatory actions and harms that are illegal also include those that may occur outside of the workplace or those that are not related to employment. In other words, the law against retaliation does not only cover actions and harms that "are related to employment or occur at the workplace."


Are my coworkers protected if they support my claim?


Yes. The law says it is illegal to discriminate against any employee who opposes a discriminatory employment practice.


How might my employer respond to my complaint?


Your employer may deny your allegations and tell the court what you perceive to be retaliation is not related to your discrimination complaints, but is instead because of poor performance, for example.


When might the court find in my employer's favor?


The court may find in your employer's favor if your employer is able to offer "neutral performance-related factors" for what appears to be retaliatory behavior. Such "neutral performance-related factors" might include poor performance or a custom or policy of reassigning duties.


Are there any types of retaliation that might not be severe enough for the court to consider?


This will likely depend on the facts of each case, the closeness of the connection between the retaliatory act and your complaint, and the evidence you are able to provide to defeat your employer's excuse for its conduct towards you (step three in the three-step test to prove your case).


EXAMPLE: In one case, the court did not consider statements about a female employee "crying" to the employer's headquarters (i.e. complaining about discrimination) to be evidence of retaliation because a "single vague statement" may have no harmful meaning.


EXAMPLE: Also, the court found that lunch meetings at bars that cater to a male clientele, although unprofessional, are not retaliatory. The court's reasoning for this was insufficient evidence of a cause and effect relationship between the woman's complaints and the restaurant choice.


EXAMPLE: The court also found that there was a lack of evidence that derogatory statements made by a supervisor who is known to be an "even-handed harasser" were proof of retaliation. The court explained that a woman's "subjective belief" is insufficient evidence of retaliation. By discounting her "subjective belief" the court means that what the woman believed to be the motivation (i.e. retaliation) rather than what was actually the motivation is not sufficient proof.


What happens if the Equal Employment Opportunity Commission (EEOC) or the court doesn't think I suffered retaliation?


If, once the EEOC has completed its investigation of your discrimination complaint, it finds that no discrimination has occurred, it will dismiss your complaint and notify you and your employer promptly. At this point, you may initiate a lawsuit despite the EEOC's findings.


If the court finds that you have not suffered sex discrimination, they may dismiss your case and award attorney's fees to the other party at your expense.


If I prove my case and the court finds in my favor, what can I get?


The court may order your employer to stop any unlawful practice. It may also order your employer to reinstate you. The court may also award back pay that accrued within two years of the filing of your claim. The court may reduce this award by any wages you did or could have earned during this time. You could also win other monetary damages. And finally, the court may also award you attorney's fees.


For more information, see What do I Get if I Win.



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