Protected Activity

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Did you know that at the beginning of 2016, the EEOC rolled out Phase I of its Digital Charge System, which provides an online portal system for employers to access and respond to a Charge of Discrimination? If you didn’t know, you are not alone. Many employers have been surprised to receive an email from the EEOC stating that a Charge has been filed and providing a password to access the EEOC’s secure online portal. The email provides a deadline for the employer to log in to the portal. Once logged in, the employer may view and download the Charge, respond to mediation requests and upload position statements it creates for the EEOC to review. (The EEOC asserts that information uploaded to the portal are encrypted and protected by proper security controls.) The EEOC’s plan is to no longer send hard copies of these documents to employers.
Continue Reading Have You Gotten An Email from the EEOC?

The number of retaliation claims filed with the EEOC has been steadily rising.  Is there more retaliation in the working world?  More likely some of the rise is due to better knowledge of various employment laws’ anti-retaliation provisions and greater enforcement of those provisions, including more lawyers bringing retaliation claims that end in sizable verdicts.
Continue Reading How Not To Retaliate

Can you terminate an employee for participating in an internal investigation at your company that is not connected with a formal EEOC proceeding?

Recently, in Townsend v. Benjamin Enterprises, Inc., the Second Circuit joined five other federal appellate courts in answering this question with a “yes.”  The Court held that participation in an internal employer investigation not connected with a formal EEOC proceeding is not protected activity under the participation clause contained in Title VII.  So, an employee participating in an internal investigation is not protected from being terminated in retaliation for such participation.  However, even if such a termination is not unlawful, it is still not a wise or productive decision for any company.
Continue Reading Even Where Retaliation Might Be Lawful, It Is Still Unwise