Last update
04-Jul-2014
, jjf@uoregon.edu
Please note: Due to the large volume of correspondence I receive, I cannot answer
most messages.
Copyright © 1995-2011 Jennifer J. Freyd.
Compiled by Jennifer J. Freyd, Professor of Psychology, Universityof Oregon, 14 June 2014
Dislaimer: I am not a lawyer. Nothing in this document should be read as constituting legal advice. I also cannot guarantee the accuracy of the information here. It was compiled from internet sources. I did my best to select only those sources that appeared to be governmental and/or well-established. I have provided links to the source material. Please read the material yourself and seek qualified legal advice for more definitive analysis.
In general, the remedies provided by these laws are non-exclusive.
The Clery act contains explicit language about retaliation in 20 U.S. Code § 1092(f)(17). http://www.law.cornell.edu/uscode/text/20/1092
Nothing in this subsection shall be construed to permit an institution, or an officer, employee, or agent of an institution, participating in any program under this subchapter and part C of subchapter I of chapter 34 of title 42 to retaliate, intimidate, threaten, coerce, or otherwise discriminate against any individual with respect to the implementation of any provision of this subsection.
It is illegal to retaliate against an employee for reporting sexual harassment or other discrimination under the civil rights act, as clarified in 34 CFR 100.7(e) http://www.law.cornell.edu/cfr/text/34/100.7
Intimidatory or retaliatory acts prohibited. No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section 601 of the Act or this part, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part. The identity of complainants shall be kept confidential except to the extent necessary to carry out the purposes of this part, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.
This was incorporated by reference into cases the federal regulation around Title IX by 34 CFR 106.71.
The procedural provisions applicable to title VI of the Civil Rights Act of 1964 are hereby adopted and incorporated herein by reference. These procedures may be found at 34 CFR 100.6-100.11 and 34 CFR, part 101. http://www.law.cornell.edu/cfr/text/34/106.71
Universities have been reminded of their obligations in guidance from the department of education, most notably the Dear Colleague Letter sent by the Assistant Secretary of the office of civil rights on April 24, 2013. http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201304.pdf
The ability of individuals to oppose discriminatory practices, and to participate in OCR investigations and other proceedings, is critical to ensuring equal educational opportunity in accordance with Federal civil rights laws. Discriminatory practices are often only raised and remedied when students, parents, teachers, coaches, and others can report such practices to school administrators without the fear of retaliation. Individuals should be commended when they raise concerns about compliance with the Federal civil rights laws, not punished for doing so.
The Federal civil rights laws make it unlawful to retaliate against an individual for the purpose of interfering with any right or privilege secured by these laws.3 If, for example, an individual brings concerns about possible civil rights problems to a school’s attention, it is unlawful for the school to retaliate against that individual for doing so. It is also unlawful to retaliate against an individual because he or she made a complaint, testified, or participated in any manner in an OCR investigation or proceeding. Thus, once a student, parent, teacher, coach, or other individual complains formally or informally to a school about a potential civil rights violation or participates in an OCR investigation or proceeding, the recipient is prohibited from retaliating (including intimidating, threatening, coercing, or in any way discriminating against the individual) because of the individual’s complaint or participation. OCR will continue to vigorously enforce this prohibition against retaliation.
These anti-retaliatory provision apply regardless of whether the original complaint was found to have merit (see http://www.eeoc.gov/laws/types/facts-retal.cfm). Retaliation constitutes an additional violation of the Clery Act subject to full penalties (see http://www.cleryact.info/non-retaliation.html).
An employer may not fire, demote, harass or otherwise "retaliate" against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability, as well as wage differences between men and women performing substantially equal work, also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.
In addition to the protections against retaliation that are included in all of the laws enforced by EEOC, the Americans with Disabilities Act (ADA) also protects individuals from coercion, intimidation, threat, harassment, or interference in their exercise of their own rights or their encouragement of someone else's exercise of rights granted by the ADA.
There are three main terms that are used to describe retaliation. Retaliation occurs when an employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity.
Adverse Action
An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Examples of adverse actions include:
- employment actions such as termination, refusal to hire, and denial of promotion,
- other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance, and
- any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights.
In addition to the relevant federal laws and regulations, numerous state laws are relevant. For example, ORS 659A.199 prohibits retaliation against public employees for reporting violations of federal law. http://www.oregonlaws.org/ors/659A.199
(1)It is an unlawful employment practice for an employer to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation.
(2) The remedies provided by this chapter are in addition to any common law remedy or other remedy that may be available to an employee for the conduct constituting a violation of this section. [2009 c.524 §2]
ORS 659A.030 prohibits discrimination on the basis of sex. This statute has been interpreted by courts as providing a remedy against retaliation (see: Lewis and Clark College v. Bureau of Labor, 43 Or App 245, 602 P2d 1161 (1979), Seitz v. Albina Human Resources Center, 100 Or App 665, 788 P2d 1004 (1990), Yeager v. Providence Health System Oregon, 195 Or App 134, 96 P3d 862 (2004))
Finally, ORS 659A.230 prohibits retaliation against an employee how has in good faith filled a complaint or cooperated with any legal proceeding or investigation. Like other statutes, the remedy is not exclusive. http://www.oregonlaws.org/ors/659A.230
Discrimination for initiating or aiding in criminal or civil proceedings prohibited
• remedies not exclusive(1) It is an unlawful employment practice for an employer to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee has in good faith reported criminal activity by any person, has in good faith caused a complainants information or complaint to be filed against any person, has in good faith cooperated with any law enforcement agency conducting a criminal investigation, has in good faith brought a civil proceeding against an employer or has testified in good faith at a civil proceeding or criminal trial.
(2) For the purposes of this section, complainants information and complaint have the meanings given those terms in ORS 131.005 (General definitions).
(3) The remedies provided by this chapter are in addition to any common law remedy or other remedy that may be available to an employee for the conduct constituting a violation of this section. [Formerly 659.550]
c. POLICY AND SHARED GOVERNANCE. Members of the university community have freedom to address, question, or criticize any matter of institutional policy or practice, whether acting as individuals or as members of an agency of institutional governance.
d. PUBLIC SERVICE. Public service requires that members of the university community have freedom to participate in public debate, both within and beyond their areas of expertise, and to address both the university community and the larger society with regard to any matter of social, political, economic, cultural, or other interest. In their exercise of this freedom, university community members have the right to identify their association or title, but should not claim to be acting or speaking on behalf of the University unless authorized to do so.
SECTION 2
These freedoms derive immediately from the university’s basic commitment to advancing knowledge and understanding. The academic freedoms enumerated in this policy shall be exercised without fear of institutional reprisal.
