Retaliation is the most frequently alleged basis of discrimination in the federal sector and the most common discrimination finding in federal sector cases.
Retaliation occurs when an employer punishing job applicants or employees for asserting their rights to be free from employment discrimination including harassment. Asserting these rights is called “protected activity,” and it can take many forms. For example, it is unlawful to retaliate against applicants or employees for:
• filing or being a witness of discriminating or harassment 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.
For example, depending on the facts, it could be retaliation if an employer acts because of the employee’s “protected 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 a discrimination lawsuit by purposefully changing his work schedule to conflict with family responsibilities).
