Fired Up About Retaliation

Your Memorial Day post is here!

On behalf of two battalion chiefs in one Northern Virginia Fire and Rescue Department, the ACLU filed charges of discrimination this week with the Equal Employment Opportunity Commission (“EEOC”) alleging that the department retaliated against them after they pushed the Department to discipline an employee who had sexually harassed other employees, and advocated for fair treatment for women.

One female battalion chief alleged she was denied jobs and a promotion after trying to stop a male subordinate from harassing and stalking a more junior female. Another female chief resigned from working as Women’s Program Officer earlier in the year claiming that she was told it would be best if she finished her career at another agency outside the fire department.

Both allege, here, they suffered “adverse actions” for speaking out against the Department’s “systemic discrimination against female firefighters, including pervasive sexual harassment.”

This, the chiefs allege, violates Title VII of the Civil Rights Act of 1964 (“Title VII”). If proven true, they are correct.

Telling management about unlawful workplace discrimination is “protected activity” under Title VII, which contains an anti-retaliation provision making it unlawful for an employer to subject an employee to an “adverse action” (such as termination, pay cut, demotion, lack of promotion) when that employee has opposed any practice made an unlawful employment practice by Title VII.

The EEOC considers “opposition” to an unlawful employment practice to include complaining to management about alleged discrimination or unlawful harassment, in reasonable good faith, against oneself OR others. Other examples of what the EEOC considers protected opposition include:

• providing information in an employer’s internal investigation of an EEO matter;

• refusing to obey an order reasonably believed to be discriminatory;

• advising an employer on EEO compliance;

• resisting sexual advances or intervening to protect others;

• passive resistance (allowing others to express opposition);

• requesting reasonable accommodation for disability or religion;

• complaining to management about EEO-related compensation disparities; or

• talking to coworkers to gather information or evidence in support of a potential EEO claim.

So, historically and statistically, firefighting has not been a historically friendly place for women. According to the Bureau of Labor Statistics, women made up just 3.5 percent of all career firefighters in 2017, down from 5.3 percent in 2007.

Employer Takeaway:

As we’ve mentioned before here, and we certainly do not know how the EEOC investigation will unfold, we can remind you that it’s far easier to prove retaliation than the underlying discrimination—and far easier to create a retaliation situation if you don’t know how to deal with a charge or claim or complaint of discrimination. Be careful how you deal with an employee who complains about unlawful harassment or discrimination!