Race discrimination is bad enough, but an Oklahoma-based company recently learned the hard way that adding a retaliation mistake on top of that can lead to hefty settlements.
The employee worked at a company office located in Midland, Texas. The EEOC’s lawsuit alleged that the employee was subjected to racist remarks by his supervisor, who was white. The discrimination allegedly started on the employee’s first day on the job and continued throughout his time at the company.
Among other things, the supervisor allegedly:
- used the N-word when referring to the employee and other minority employees
- made offensive racist “jokes” in the presence of the employee, and
- mocked the employee for being offended.
The employee complained to the company’s vice president. Even so, the supervisor allegedly continued to use racial slurs and make racially offensive comments. In one instance at the end of a company gathering, the supervisor told racist jokes while looking at the employee and used his hand to pretend to shoot a gun at the employee, the suit claimed.
Feeling threatened, the employee said he again complained to the company’s vice president. However, no corrective action was taken, the suit alleged.
Instead, the employee said that company leaders began to scrutinize and discipline him more harshly than his white colleagues. And about a month later, he was fired.
In September of 2021, the EEOC filed a Title VII suit on behalf of the employee, alleging a racially hostile work environment. The complaint sought back pay as well as compensatory and punitive damages.
Under the terms of the settlement, American Piping Inspection, Inc. agreed to:
- pay $250,000 to the employee
- revise its anti-discrimination policies and distribute the updated policies to all employees and new hires
- provide Title VII training to all managers and HR staff regarding their legal obligations to prevent, address and remedy workplace discrimination and retaliation
- post a discrimination notice and EEO posters at all its worksites, and
- submit periodic compliance reports to EEOC for a duration of three years.
As you know, companies cannot take an “adverse employment action” against an employee for asserting their EEO rights – which is sometimes called “engaging in a protected activity.”
But what exactly is an “adverse employment action” by EEOC standards?
Guidance from EEOC: What a retaliation mistake might look like
Unfortunately, there is no cut-and-dried list of what is — and isn’t — actionable, as the “circumstances of each case determine whether a particular action is retaliatory in that context,” the EEOC says.
However, the agency has provided examples that may be considered retaliatory “adverse employment actions,” such as:
- work-related threats, warnings or reprimands
- negative or lowered evaluations
- transfers to less prestigious or desirable work or work locations
- making false reports to government authorities or in the media
- filing a civil action
- threatening reassignment
- scrutinizing work or attendance more closely than that of other employees, without justification
- removing supervisory responsibilities
- engaging in abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not yet “severe or pervasive” as required for a hostile work environment
- requiring re-verification of work status, making threats of deportation or initiating other action with immigration authorities because of protected activity
- terminating a union grievance process or other action to block access to otherwise available remedial mechanisms, or
- taking (or threatening to take) a materially adverse action against a close family member (who would then also have a retaliation claim, even if not an employee).
For more info, check out the EEOC’s Facts About Retaliation.