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Unlawful Discrimination Claims

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We have an employee that has reported our South Dakota government agency to the EEOC for discrimination, but we do not believe we were discriminating. Are we legally allowed to discipline this employee?

You may not be allowed to discipline your employee if the employee believes in good faith that there has been discrimination in your workplace. Federal employees are protected by the Whistleblower Protection Act (WPA) if they wish to report government or agency misconduct to the Equal Employment Opportunity Commission (EEOC) or any other reporting agency. As long as your employee truly believes that discrimination has taken place and can prove that he or she has reason to believe that discrimination has taken place, then you may not take adverse action against the employee.

There are eight actions that an employee can take under protection of the WPA. These actions include reporting misconduct to the EEOC or another overseeing agency as well as the following seven:

1. Your employee is legally allowed to file unfair labor practice charges with the National Labor Relations Board or another state agency. Keep in mind that if your employee files charges, then the employee will have to have evidence to support the claims. The WPA does not protect employees that are simply trying to harm the reputation or good-standing of a company without proof of a violation.
2. Your employees may file a Workers Compensation claim.
3. If the employee believes that there are health or safety violations in the workplace, then the employee may file a complaint with the Occupational Safety and Health Administration (OSHA). Your employees should be legally allowed to refuse certain assignments that they determine might be unsafe or otherwise dangerous to their health.
4. Your employees should be allowed to participate in union activities, as long as those activities are legal.
5. Your employees should be able to file a claim for equal pay or for wage or hourly pay violations without having to worry about retaliation.
6. If your employees engage in activities that oppose or publicize your policies that might violate consumer protection laws, then the employees may be protected. (This type of activity is often associated with picketing and striking.)
7. Your employees should also legally be able to report any suspicions or evidence of fraud, corruption, or related lawbreaking that are covered by the Racketeering and Corruption Organization Act, the WPA or by state laws. CB