Retaliation At Work

Authored By: Lagniappe Law Lab
Read this in: Spanish / Español

About

What is retaliation as part of employment discrimination?

Persons who file a charge, oppose unlawful employment discrimination, participate in employment discrimination proceedings, or otherwise assert their rights under the laws enforced by the Equal Opportunity Employment Commission (EEOC) are protected against retaliation.

  • The EEOC laws prohibit punishing job applicants or employees for asserting their rights to be free from employment discrimination including harassment.  Asserting these EEOC rights is called "protected activity," and it can take many forms.
  • Participating in a complaint process is protected from retaliation under all circumstances. Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEOC laws, even if he or she did not use legal terminology to describe it.

It is unlawful to retaliate against applicants or employees for:

  • filing or being a witness in an EEOC charge, complaint, investigation, or lawsuit
  • communicating with a supervisor or manager about employment discrimination, including harassment
  • answering questions during an employer investigation of alleged harassment
  • refusing to follow orders that would result in discrimination
  • resisting sexual advances, or intervening to protect others
  • requesting accommodation of a disability or for a religious practice
  • asking managers or co-workers about salary information to uncover potentially discriminatory wages.

Does engaging in EEOC activity shield an employee from all discipline or discharge?

  • Employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences.  However, an employer is not allowed to do anything in response to EEOC activity that would discourage someone from resisting or complaining about future discrimination.
  • For example, depending on the facts, it could be retaliation if an employer acts because of the employee's EEOC activity to:
    • reprimand the employee or give a performance evaluation that is lower than it should be;
    • transfer the employee to a less desirable position;
    • engage in verbal or physical abuse;
    • threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police);
    • increase scrutiny;
    • spread false rumors, treat a family member negatively (for example, cancel a contract with the person's spouse); or
    • make the person's work more difficult (for example, punishing an employee for an EEOC complaint by purposefully changing his work schedule to conflict with family responsibilities).

State Law

Louisiana State Law and Retaliation Based on Employment Discrimination

Retaliation claims for other types of discrimination complaints are not covered under the Louisiana Employment Discrimination Law. Under La. Rev. Stat. § 23:967 General Whistleblower Protection Law an employee may not be discharged (or discriminated against) in retaliation for performing, in good faith, the following activities:

  • Disclosing (or threatening to disclose) a workplace act or practice that violates state law;

  • Providing information or testimony in a public investigation, hearing, or inquiry into any violation of the law;

  • Refusing to participate in (or objecting to) an illegal employment act.

To be protected under this statute, the employee must first inform the employer of the violation. An employee is not protected if he goes directly to a governmental agency without first advising the employer. Also, an employee must be certain that the illegal conduct actually happened; a reasonable, good faith belief will not protect an employee if no violation actually occurred. 

Additionally, the following status explicitly prohibit retaliation in employment discrimination based on age or sickle-cell trait: 

  • LA Rev. Stat. Sec. 23:312(D) Louisiana state laws explicitly prohibits retaliation against employees who file discrimination complaints based on age (age 40 or older). 
  • LA Rev. Stat. Sec. 23:352(D) State law explicitly prohibits retaliation against employees who file discrimination complaints based sickle-cell trait.

In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.

How to File a Charge

To File a Charge

Persons who file a charge, oppose unlawful employment discrimination, participate in employment discrimination proceedings, or otherwise assert their rights under the laws enforced by the Equal Opportunity Employment Commission (EEOC) are protected against retaliation.

Laws like Title VII of the Civil Rights Act of 1964 (Title II) , The Americans with Disabilities Act (ADA), Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), The Age Discrimination in Employment Act (ADEA), Equal Pay Act (EPA) require you to file a charge of discrimination with the Equal Opportunity Employment Commission (EEOC) before you can file a discrimination lawsuit against your employer. An individual alleging a violation of Title VII, GINA, ADEA, and ADA must file a charge with the EEOC before you can file a discrimination claim in federal court. 

  1. To File an Equal Opportunity Employment Commission (EEOC) Charge:

    • Within 180 days of the alleged unlawful compensation practice (2 years under the EPA)

    • 15 (20 for age discrimination) or more employees who have worked for the employer for at least twenty calendar weeks (in this year or last).

  2. To File with the Louisiana Commission on Human Rights (LCHR)

    • Within 180 days of the alleged unlawful compensation practice

    • 20 (or 25 for pregnancy related claims) or more employees who have worked for the employer for at least twenty calendar weeks (in this year or last).

  3. To File in a State Court under Louisiana State Law:

    • You may file a claim under state law without having first gone to either the LCHR or EEOC.

    • Generally, to preserve your claim under state law based on your state discrimination claims, you must file within 1-year or 360 days of the date you believe you were discriminated against. 

    • If you file your discrimination claim with the EEOC or LCHR within 300 days of the discriminatory treatment, then you have an additional 6-month extension from the 1-year period to file your claim in Louisiana state court (meaning you have 18 total months).

    • A case filed in state court using federal law may be “removed” to federal court by the employer because it involves a federal statute such as Title VII, GINA, ADA, or the ADEA, or because the employer is based in another state.

  4. To file a discrimination in federal court

    • To preserve your claim under federal law, you must cross-file with the EEOC or LCHR within 300 days of the date you believe you were discriminated against.

    • A federal employment discrimination case cannot be filed in court without first going to the EEOC or LCHR, as discussed above, and having the EEOC or LCHR dismiss your claim.

    • This process is called “exhaustion” of your administrative remedy. The EEOC or LCHR must first issue the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” (Form 161) before you can file a case based upon your federal claim.

    • A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. (Be sure to mark down that date when you receive the notice.)

Last Review and Update: Sep 20, 2022
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