Page 66 - An Indispensible Resource for Being a Credible Activist

discriminating against someone. This is a very troubling situation. All HR professionals must
be aware that when anyone advocates for someone else’s rights under EEO or ADA laws, the
person advocating is also protected from retaliation. If more HR professionals had the courage
to document when this happens and then advocate for EEO and ADA laws, it might begin to
happen less. Before moving forward, however, be prudent and check your state public policy
exceptions under employment at-will laws and learn whether those trump the EEOC’s prohibi-
tions against retaliation for advocating for others. Never assume; always research!
One frustrating thing for an HR professional to overhear is, “Well, I’m not a member of
a protected group.” We are all members of protected groups. If a man of a particular ethnic-
ity and color works in a factory and every other employee and manager there is also a male
of that color and ethnicity, but this particular man is offended by racist or sexist jokes, he
may file a legitimate complaint if such behavior is displayed in his presence. Legitimate
complaints are about the behavior that is in violation of civil rights employment laws—not
necessarily about the identity of the person complaining. You never know whom someone
is dating, married to, cousins with, adopted by, whom they’ve adopted, and so on. Do not
assume that someone’s entire family is of the same ethnicity or color as they are.
Similarly, if an employee observes or overhears other employees harassing or discrimi-
nating against someone at work, and the subject of the negative behavior does not complain
for whatever reason, any employee who in any way witnesses or somehow becomes aware
of this behavior may also file a legitimate complaint with the company and subsequently
with the EEOC, the state’s Division of Human Rights, and/or the city’s Division of Human
Rights, if there is one.

❱❱ RETALIATION

A newly added protection to EEOC guidelines includes protection from retaliation for any-
one who participates in an investigation into an EEO or ADA complaint. Discrimination or
retaliation based on any of the above actions is unlawful in all states in the United States.
Hundreds of thousands of EEO charges are brought by employees and former employees
each year to the EEOC, State Divisions of Human Rights, and City Commissions on Human
Rights. Employees usually bear the burden of proof and have varying amounts of success in
proving allegations of unlawful discrimination and harassment depending on whether or not
they have proof. Proof can be in the form of written materials by those harassing or discrim-
inating against them or others, signed statements from witnesses, several people making the
same complaints and bearing witness for one another, employees making audio or video
recordings of actual harassment (recording is only legal in certain states), or rare confessions
of those who engaged in the unlawful harassment, discrimination, or retaliation.

In fiscal year 2008, the EEOC received 32,690 charges of retaliation discrimination based
on all statutes enforced by EEOC. The EEOC resolved 25,999 retaliation charges in 2008,
and recovered more than $111 million in monetary benefits for charging parties and other
aggrieved individuals (not including monetary benefits obtained through litigation). 1

CHAPTER 4 • Legal Issues for Credible Activists 49