Identifying discriminatory retaliation in the work place
February 28, 2014
Employees who believe they’ve been subjected to discriminatory retaliation are encouraged
to bring the behavior to the attention of someone who can help. If you think you're
being discriminated against, this is information that can help you decided if you
should report the conduct to the UAF Office of Diversity and Equal Opportunity.
For retaliation to be a violation of UAF policy, you have to analyze several essential
elements.
- What was the protected activity?
- What adverse action has been taken against you?
- Who took the action and what was their motivation?
Protected activity
UAF policy states, “All persons have the right to complain about any conduct which they reasonably believe constitutes discrimination.” To establish retaliation that violates policy, you must have previously opposed discrimination, filed a discrimination complaint or participated in a civil rights proceeding such as an investigation. Reporting ethical concerns, bullying or other issues that are not related to discrimination are not protected activity for discriminatory retaliation. For instance, if you report bullying that is not based on a protected category (race, color, national origin, sex, religion, age, disability, genetic code or sexual orientation) to Human Resources and then suffer retaliation, you would have to go back to HR for assistance.
Adverse action
An adverse action is something that harms your educational or working opportunity. Retaliation is typically an action that attempts to silence your opposition to discrimination or your participation in complaints procedures. The details are very important. For example, let’s say you filed a complaint of discrimination and then your manager reprimanded you for being late. If you and other employees are routinely late for work and after filing a complaint, your manager targeted you and wrote only you up for being late, that could be retaliation. But let’s say prior to filing the complaint, your manager always expected you and others to be prompt. Then after filing the complaint you began coming in late, the manager would have a legitimate reason for correcting your tardiness.
Who and why
It's important to know who is responsible for the harm or adverse action, as well as their motivation. Establishing retaliation requires proving motive or the intent to retaliate. Typically, the adverse action is taken with the intent of putting a “chilling effect” on the willingness of individuals to speak out against discrimination. For instance, you oppose sexual harassment (protected activity) and later you are demoted. When asked for the reason, the manager says you were a poor performer. However, if your performance appraisals show you were doing an excellent job, then it could be inferred that the intent was retaliation. UAF policy states, “Threats or other forms of intimidation or retaliation against complainants, respondents, witnesses or investigators will constitute a violation of this regulation and may be subject to separate administrative action, including termination for cause.”
If you have questions regarding your specific situation, the Office of Diversity and Equal Opportunity is available to discuss. Call 474-7300 or visit our website.