Re: Gi Joe Retaliation Dual Audio Free Download 720p 183
Brandi Baylon
The federal employment discrimination laws depend on the willingness of employees and applicants to challenge discrimination without fear of punishment. Individuals rely on the statutory prohibitions against retaliation, also known as "reprisal," when they complain to an employer about an alleged equal employment opportunity (EEO) violation, provide information as a witness in a company or agency investigation, or file a charge with the Equal Employment Opportunity Commission (Commission or EEOC).
This Enforcement Guidance replaces the EEOC's Compliance Manual Section 8: Retaliation, issued in 1998. Since that time, the Supreme Court and the lower courts have issued numerous significant rulings regarding employment-related retaliation.[1] Further, the percentage of EEOC private sector and state and local government charges alleging retaliation has essentially doubled since 1998.[2] Retaliation is now the most frequently alleged basis of discrimination in all sectors, including the federal government workforce.[3]
This document sets forth the Commission's interpretation of the law of retaliation and related issues. In crafting this guidance, the Commission analyzed how courts have interpreted and applied the law to specific facts. Regarding many retaliation issues, the lower courts are uniform in their interpretations of the relevant statutes. This guidance explains the law on such issues with concrete examples, where the Commission agrees with those interpretations. Where the lower courts have not consistently applied the law or the EEOC's interpretation of the law differs in some respect, this guidance sets forth the EEOC's considered position and explains its analysis. The positions explained below represent the Commission's well-considered guidance on its interpretation of the laws it enforces. This document also serves as a reference for staff of the Commission and staff of other federal agencies who investigate, adjudicate, litigate, or conduct outreach on EEO retaliation issues. It will also be useful for employers, employees, and practitioners seeking detailed information about the EEOC's position on retaliation issues, and for employers seeking promising practices.
Retaliation occurs when an employer takes a materially adverse action because an individual has engaged in, or may engage in, activity in furtherance of the EEO laws the Commission enforces. The EEO anti-retaliation provisions ensure that individuals are free to raise complaints of potential EEO violations or engage in other EEO activity without employers taking materially adverse actions in response.
Retaliation occurs when an employer takes a materially adverse action because an individual has engaged, or may engage, in activity in furtherance of the EEO laws the Commission enforces.[4] Each of the EEO laws prohibits retaliation and related conduct: Title VII of the Civil Rights Act of 1964 (Title VII),[5] the Age Discrimination in Employment Act (ADEA),[6] Title V of the Americans with Disabilities Act (ADA),[7] Section 501 of the Rehabilitation Act (Section 501),[8] the Equal Pay Act (EPA),[9] and Title II of the Genetic Information Nondiscrimination Act (GINA).[10] These statutory provisions prohibit government or private employers, employment agencies, and labor organizations[11] from retaliating because an individual engaged in "protected activity."[12] Generally, protected activity consists of either participating in an EEO process or opposing conduct made unlawful by an EEO law.
Section II of this guidance explains the concepts of participation and opposition, what types of employer actions can be challenged as retaliation, and the legal standards for determining whether the employer's action was caused by retaliation in a given case.
Section III addresses the additional ADA prohibition of "interference" with the exercise of rights under the ADA.[13] The interference provision goes beyond the retaliation prohibition to make it also unlawful to coerce, intimidate, threaten, or otherwise interfere with an individual's exercise of any right under the ADA, or with an individual who is assisting another to exercise ADA rights.
The breadth of these anti-retaliation protections does not mean that employees can immunize themselves from consequences for poor performance or improper behavior by raising an internal EEO allegation or filing a discrimination claim with an enforcement agency. Employers remain free to discipline or terminate employees for legitimate, non-discriminatory, non-retaliatory reasons, notwithstanding any prior protected activity.[14] Whether an adverse action was taken because of the employee's protected activity depends on the facts. If a manager recommends an adverse action in the wake of an employee's filing of an EEOC charge or other protected activity, the employer may reduce the chance of potential retaliation by independently evaluating whether the adverse action is appropriate.
The first question when analyzing a claim that a materially adverse action was retaliatory is whether there was an earlier complaint or other EEO activity that is protected by the law (known as "protected activity"). Protected activity includes "participating" in an EEO process or "opposing" discrimination. These two types of protected activity arise directly from two distinct statutory retaliation clauses that differ in scope. Participation in an EEO process is more narrowly defined to refer specifically to raising a claim, testifying, assisting or participating in any manner in an investigation, proceeding or hearing under the EEO laws, but it is very broadly protected. By contrast, opposition activity encompasses a broader range of activity by which an individual opposes any practice made unlawful by the EEO statutes. The protection for opposition is limited, however, to those individuals who act with a reasonable good faith belief that a potential EEO violation exists and who act in a reasonable manner to oppose it.
One type of protected activity is participation. An individual is protected from retaliation for having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, the ADEA, the EPA, the ADA, the Rehabilitation Act, or GINA. Participation may include, for example, filing or serving as a witness in an administrative proceeding or lawsuit alleging discrimination.
The anti-retaliation provisions make it unlawful to discriminate because an individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, the ADEA, the EPA, the ADA, the Rehabilitation Act, or GINA. This language, known as the "participation clause," provides protection from retaliation for many actions, including filing or serving as a witness for any side in an administrative proceeding or lawsuit alleging discrimination in violation of an EEO law.[16] The participation clause applies even if the underlying allegation is not meritorious or was not timely filed.[17]
The Commission has long taken the position that the participation clause broadly protects EEO participation regardless of whether an individual has a reasonable, good faith belief that the underlying allegations are, or could become, unlawful conduct.[18] Although the Supreme Court has not addressed this question, the participation clause by its terms contains no limiting language, and protects from retaliation employees' participation in a complaint, investigation, or adjudication process.[19] In contrast to the opposition clause, which protects opposition to practices "made . . . unlawful" by the statute, and therefore requires a reasonable good faith belief that conduct potentially violates the law, the participation clause protects participating "in any manner in an investigation, proceeding, or hearing" under the statute. 42 U.S.C. 2000e-3(a). As one appellate court explained, "[r]eading a reasonableness test into section 704(a)'s participation clause would do violence to the text of that provision and would undermine the objectives of Title VII."[20]
The Supreme Court has reasoned that broad participation protection is necessary to achieve the primary statutory purpose of anti-retaliation provisions, which is "maintaining unfettered access to statutory remedial mechanisms."[21] The application of the participation clause cannot depend on the substance of testimony because, "[i]f a witness in [an EEO] proceeding were secure from retaliation only when her testimony met some slippery reasonableness standard, she would surely be less than forth-coming."[22] These protections ensure that individuals are not intimidated into forgoing the complaint process, and that those investigating and adjudicating EEO allegations can obtain witnesses' unchilled testimony.[23] It also avoids pre-judging the merits of a given allegation. For these reasons, the Commission disagrees with decisions holding to the contrary.[24]
This does not mean that bad faith actions taken in the course of participation are without consequence. False or bad faith statements by either the employee or the employer should be taken into appropriate account by the factfinder, investigator, or adjudicator of the EEO allegation when weighing credibility, ruling on procedural matters, deciding on the scope of the factfinding process, and deciding if the claim has merit. It is the Commission's position, however, that an employer can be liable for retaliation if it takes it upon itself to impose consequences for actions taken in the course of participation.
Although courts often limit the participation clause to administrative charges or lawsuits filed to enforce rights under an EEO statute, and instead characterize EEO complaints made internally (e.g., to a company manager or human resources department) as "opposition,"[25] the Supreme Court in Crawford v. Metropolitan Government of Nashville & Davidson County explicitly left open the question of whether internal EEO complaints might be considered "participation" as well.[26] The Commission and the Solicitor General have long taken the view that participation and opposition have some overlap, in that raising complaints, serving as a voluntary or involuntary witness, or otherwise participating in an employer's internal complaint or investigation process, whether before or after an EEOC or Fair Employment Practices Agency (FEPA) charge has been filed, is covered under the broad protections of the participation clause, although it is also covered as "opposition."[27] The plain terms of the participation clause prohibit retaliation against those who "participated in any manner in an investigation, proceeding, or hearing" under the statute. 42 U.S.C. 2000e-3(a) (emphasis added). As courts have observed, these statutory terms are broad, unqualified, and not expressly limited to investigations conducted by the EEOC.[28] Similarly, contacting a federal agency employer's internal EEO Counselor under 29 C.F.R. 1614.105 to allege discrimination is participation.[29]
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