Unlawful retaliation is perhaps the number one reason that employees fail to report discrimination and harassment. The fear that a company will retaliate against an employee for opposing or reporting illegal conduct seems well founded, given that in 2022, the EEOC reported that 51% of all EEOC charges filed for that year included allegations of retaliation. Many of the EEOC charges that I file for clients will include claims for retaliation.
Just last week, two black employees of TikTok filed EEOC charges against the company, alleging unlawful retaliation by managers and the company after the employees had reported to HR their concerns about discrimination and harassment in their workplace. After the second complaint to HR, the two employees were fired. At this point, the EEOC will investigate the allegations in the charge, and the company has a chance to respond through its Position Statement and deny and/or attempt to explain why what the employees experienced was not actually retaliation. It’s a high profile case that we’ll continue to follow in the coming months.
So what constitutes illegal or unlawful retaliation for South Carolina employees?
Illegal retaliation occurs when an employee engages in protected activity. For retaliation based on race, this normally this means the employee opposes harassment or discrimination by reporting illegal conduct to management or HR, or the employee contacts the EEOC and files a charge of discrimination (or even just participates in the EEOC process as a witness). If, as a result of the complaint or charge, the company fires, demotes, suspends, or otherwise takes some sort of adverse employment action against the employee, then the employee has suffered unlawful retaliation. If the employee is complaining about a specific harasser, sometimes that harasser will find out about the report, get angry, and seek to retaliate against the employee directly (threats, for example).
What are some common examples of unlawful retaliation against South Carolina employees?
A few common scenarios I see:
- Employee complains and is suddenly hit with an unexpected and unjustified write-up;
- Employee complains and is put on a performance improvement plan, despite recent excellent performance reviews;
- Employee complains and has his or her hours cut or is transferred to a less desirable shift;
- Employee complains and is suddenly selected for a reduction in force…of one;
- Employee complains and the individual harasser threatens the employee in some way.
These are by no means exhaustive. Human beings are unique in their ability to craft ways to make the life of another person completely miserable.
What can a South Carolina employee do to report or oppose unlawful harassment, discrimination, or retaliation?
If you are experiencing harassment, discrimination, or unlawful retaliation and need to report it, here are a few general tips to consider:
- Keep records. Maintain copies of harassing/discriminatory emails and texts, and make sure they are stored on personal devices or cloud drives, NOT company computers. If you get fired and marched out of the building, you will need to have those copies stored elsewhere, or else risk losing them altogether. Trust me, if you don’t have it in writing or on a recording, the company will deny it, 100% of the time.
- Take notes. Dates, details, and names will be very helpful later, and your memory will only fade over time.
- When you are ready to complain, try to send the complaint in writing from your personal email account. That way you have proof of the date you complained and a copy of the actual complaint. If you make a verbal complaint via phone or in person and don’t follow with something in writing, the company will often deny you ever complained.
- Make sure the complaint contains details about the specific type of discrimination or harassment you’ve experienced and how it is based on a protected category such as race, age, sex, disability, religion, or national origin.
- Don’t delay.
- You may want to seek the advice of an employment attorney prior to sending the complaint.
If you take these sorts of steps, you’ll be better positioned to bring a retaliation lawsuit in state or federal court. You’ll also be better prepared to meet with an attorney and discuss the facts of your case in more detail. (For more information on how to prepare for meeting an employment lawyer for a consult, click here.)
State and federal law explicitly protect employees from unlawful retaliation in the workplace, both for reporting employment discrimination and harassment, as well as other types of whistleblower activities. Take steps to protect yourself as best you can, and if you need assistance, don’t hesitate to reach out.