Floyd D. Weatherspoon
excerpted from: Floyd D. Weatherspoon, don't Kill the Messenger: Reprisal Discrimination in the Enforcement of Civil Rights Laws, 2000 Law Review of Michigan State University Detroit College of Law 367 (Summer, 2000) (197 Footnotes Omitted)
A number of federal and state civil rights laws prohibit employment discrimination in the workplace and require employers to take corrective action to eradicate discrimination. Employers have developed internal procedures and policies to comply with such laws. Employers have also developed affirmative action programs to identify and eliminate barriers which block equal employment opportunities for employees and applicants.
To achieve these goals, an employer hires an Equal Employment Opportunity/Affirmative Action employee (hereinafter EEO/AA employee) to develop and implement these programs within the organization. The typical job functions of the EEO/AA employee include investigating complaints of discrimination, developing affirmative action and diversity programs, recommending disciplinary actions for employees who violate employment discrimination laws and policies, alerting the public and federal agencies of discriminatory practices, and/or monitoring the hiring and promotion practices within their organization.
Ironically, some EEO/AA employees find that the employer will intentionally or unintentionally take reprisal against them if they perform their jobs too vigorously. By ensuring that the employer complies with the various civil rights laws and regulations, such employees often find themselves excluded, ostracized, segregated, denied terms and conditions of employment, and in some situations, constructively discharged or outright fired by their employer.
Often, the EEO/AA employee has the unenviable duty of advising the employer that the organization is not in compliance with federal laws and regulations or with their own internal affirmative action program. Having brought this message, the EEO/AA employee may face adversity or even hostility from the employer. Employers prefer to receive reports that they are in complete compliance and that no discrimination exists within the organization. Thus, EEO/AA employees may be victims of reprisal discrimination from the very employers who hire them to monitor, eliminate, and prevent employment discrimination.
Even though various state and federal civil rights statutes prohibit reprisal discrimination, courts have repeatedly failed to interpret these statutes to protect activities of EEO/AA employees. Moreover, EEO/AA employees who file complaints of discrimination against their employers may also lose protection under the various civil rights laws, as such actions may not be protected activity.
Part I of this article provides an overview of what reprisal discrimination entails under Title VII and other federal laws. This section will define what activities are considered protected activities under the various civil rights laws, as well as explain how the courts have narrowed the definition, scope, and coverage of the reprisal provision. Many courts have denied EEO/AA employees protection under the reprisal provision. Part II describes how reprisal discrimination may be intentionally and unintentionally directed against EEO/AA employees. Often, employers are not aware that their actions or inactions may result in reprisal or discrimination against their EEO/AA employee. This section further analyzes cases filed by EEO/AA employees against their employers and the courts' disposition of these cases. Lastly, Part III concludes with a discussion on how employers can prevent and correct reprisal discrimination against EEO/AA employees within their organization.
. Professor of Law, Capital University Law School (Columbus, Ohio). B.S., North Carolina A&T State University, 1974; J.D., Howard University Law School, 1977.