Did you know retaliation does not have to be intentional -- nor does it have to result in altering terms and conditions of employment – to be considered illegal and prohibited under the discrimination laws? Retaliation can be as simple as a supervisor’s words that potentially send a "chilling effect" on the participation in or use of the discrimination complaint process.

In recent blog posts, we have discussed the fact that retaliation (reprisal) is illegal and that the National Institutes of Health (NIH) does not tolerate taking adverse actions against someone because they engaged in a protected activity, such as opposing a discriminatory practice or participating in a discrimination proceeding. In addition, the Equal Employment Opportunity Commission (EEOC) cautions that comments directly discouraging an employee from participating in the Equal Employment Opportunity (EEO) process violate the letter and spirit of the EEOC regulations and constitute evidence of a per se violation of the law.

Let’s explore some cases that demonstrates behaviors that have been deemed retaliatory so far:

• No Joking Matter (Charlie K. v. Equal Employment Opportunity Commission, EEOC Appeal No. 0120142315 (January 24, 2017)). In his reprisal claim, the employee said that when he asked his supervisor how an all-day management meeting went, the supervisor replied that half of the meeting was spent discussing his EEO complaint. During the investigation, the supervisor claimed his statement was a joke. While the EEOC did not find in favor for the employee on other allegations, it did find the "joke" about discussing the employee’s EEO complaint at a management meeting was reasonably likely to discourage an employee from engaging in the EEO process.
• Accusations of Lying (Celine D. v. U.S. Postal Service, EEOC Appeal No. 0120152203 (February 5, 2016)). During a work meeting, a manager accused a complainant of falsifying information to the EEO Counselor. EEOC found that this statement sufficiently sends a chilling effect to others and it may discourage others from participating in the EEO process.
• Race Card (Ivan V. v. Department of Veterans Affairs, EEOC Appeal No. 0120141416 (June 9, 2016)). A supervisor pulled complainant into an office and asked if he planned to "play the Latino card" while investigating a complaint from another employee. The Commission found that these comments could have a chilling effect on the EEO process.

Managers take note - All three of these situations were found to be illegal per se violations. Legal Dictionary defines a per se violation as, "an act that is illegal ‘in itself,’ or which is inherently illegal. The act is considered egregious in and of itself and does not require any additional evidence, or proof of intent.

By simply committing an act that is illegal per se, the perpetrator is liable for the act." In the case of Federal EEO complaints, the agency could be liable for a comment, joke, or accusation. A best practice is to refrain from making such statements.

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