Retaliation occurs when a contractor takes an adverse action against an individual because he or she engaged in protected activity, e.g., filing a complaint of discrimination or providing information to a CO during a compliance evaluation. Adverse action includes employment actions such as termination, demotion or failure to hire. Other types of actions affecting employment may also be adverse actions. These include threats, including threats to take an adverse action; unjustified negative evaluations or references; or actions such as physical assault, or unfounded civil or criminal charges that are likely to deter a reasonable person from pursuing their rights. Adverse actions do not include petty slights and annoyances, such as stray negative comments that are justified by poor performance or history, or “snubbing” a colleague.
A complaint of discrimination may contain an allegation that retaliation or interference occurred, or the allegation may arise during the course of an investigation, or even after the investigation has concluded. The complainant may be an applicant, employee, former employee or person closely associated with an individual who filed a discrimination complaint, opposed an act of discrimination or participated in a protected activity. If a complainant makes an allegation of retaliation in addition to another allegation of discrimination, a finding that the underlying discrimination did not occur will not defeat the allegation of retaliation. The CO must investigate any allegation of retaliation or interference and make an independent finding as to whether sufficient evidence supports it.
OFCCP applies the same concepts, standards and analyses as EEOC when assessing possible retaliation.326 Although Title VII’s retaliation provision does not expressly prohibit intimidation, harassment and interference as OFCCP’s regulations do, EEOC has interpreted retaliation to include these concepts. The ADA and its implementing regulations expressly prohibit such conduct.
326. Appendix A-9 – Retaliation and Interference: Complaint Processing Outline and Checklist.