What Does Retaliation Look Like in the Federal Workplace?

Retaliation is a serious concern for federal employees. According to the U.S. Equal Employment Opportunity Commission (EEOC), “[r]etaliation is the most frequently alleged basis of discrimination in the federal sector and the most common discrimination finding in federal sector cases.” As a result, if you have reason to believe that you may be a victim of retaliation, you should not ignore your concerns. Instead, you should consult with an experienced federal employment attorney who can help you make informed decisions and take appropriate legal action on your behalf.

Retaliation Can Take Many Different Forms

In both the public and private employment sectors, retaliation can take many different forms—some of which are much more subtle than others. As the EEOC explains, federal law prohibits agencies from “punishing” employees who engage in protected activities. Since evaluating a potential retaliation claim involves focusing on the reason behind a federal agency’s action, whether an action constitutes punishment or appropriate discipline depends on the specific facts and circumstances involved.

For example, while the following can be appropriate forms of disciplinary action in cases involving misconduct or poor performance (provided that the government respects the employee’s right to due process), they can also constitute retaliation:

• Formal Reprimand – Formal reprimands can be retaliatory if they are based on an employee’s decision to engage in a protected activity. This is true even if the employee has also engaged in conduct that warrants a reprimand. Managers and supervisors will often attempt to use pretexts to cover up retaliatory actions; and, even if a disciplinary action would otherwise be justified, it is unlawful if its true purpose is to retaliate.
• Negative Performance Evaluation – Unjustified negative performance evaluations are a common form of retaliation in the federal sector. As the EEOC explains, a negative performance evaluation can be deemed retaliatory if “[it] is lower than it should be.” If you received an unexpected negative performance evaluation after engaging in a protected activity, you should speak with a federal employment attorney promptly. Similar to a reprimand, even if a negative performance evaluation does not have immediate consequences for your federal employment, it could still set the stage for future adverse employment action.
• Issuing a Personal Improvement Plan (PIP) – The issuance of a personal improvement plan (PIP) can also constitute illegal retaliation under federal law. Protecting your job after the issuance of a PIP can be difficult under the best of circumstances. If your PIP is retaliatory, this can make protecting your job far more difficult. Your PIP may have been designed to set you up to fail, and if you don’t take legal action, this could ultimately lead to the end of your federal employment.
• Transfer to a Different Work Location or Position – If you were transferred to a different—and less desirable—work location or position after engaging in protected activity, you may have a retaliation claim in this scenario as well. Not all forms of retaliation necessarily have to put you on the path toward losing your federal employment. If you experience any form of retaliatory adverse action related to your employment, you have clear legal rights, and there are clear remedies available.
• Revision to the Employee’s Work Schedule – Likewise, unfavorable revisions to your work schedule can constitute unlawful retaliation. The EEOC specifically recognizes this form of retaliation (in addition to those listed above), stating that it is unlawful to “make [an employee’s] work more difficult (for example, punishing an employee . . . by purposefully changing his work schedule to conflict with family responsibilities).” If you used to be able to work from home but are no longer allowed to do so, this could provide grounds to pursue a retaliation claim as well.

Along with these types of disciplinary actions, other actions can constitute retaliation even if they do not have a direct impact on your employment status or day-to-day working conditions. For example, if you experienced any of the following after engaging in a protected activity, you may have a retaliation claim under federal law:

• Being the subject of false rumors
• Harassment or discrimination
• Having a family member who works in the federal sector being treated unfairly
• Threats of being reported to the police, internal affairs or immigration authorities
• Verbal or physical abuse

Again, these are just examples. Retaliation can (and does) take many other forms as well—and if you have any reason to suspect that you may be a victim of retaliation, it will be worth talking to a federal employment attorney about the options you have available.

Retaliation Must Be in Response to a Protected Activity

To constitute retaliation, an adverse employment action or other employment-related activity must be based on your decision to engage in a protected activity. Similar to retaliation, protected activities can also take many forms. Some examples include:

• Cooperating with a federal audit or investigation
• Filing a complaint with the EEOC
• Otherwise reporting harassment or discrimination through appropriate channels
• Refusing to engage in unlawful activity
• Requesting a reasonable accommodation, resisting sexual advances or otherwise asserting your legal rights as a federal employee

Of course, if you don’t have a retaliation claim (because you didn’t engage in a protected activity), you may have a different type of claim against your federal employer. Writing false negative performance reviews, harassing, discriminating, making threats and other similar types of actions are unlawful regardless of the reason behind them. As a result, if you believe that you have been mistreated as a federal employee for any reason, we strongly recommend speaking with an attorney so that you can be sure you are making informed decisions about your next steps.

Speak with an Experienced Federal Employment Attorney in Confidence

Do you have questions about your legal rights as a federal employee? If so, we can help, and we invite you to get in touch. To speak with an experienced federal employment attorney at The Law Firm of J.W. Stafford in confidence, please call 410-514-6099 or tell us how we can contact you online today.