Employers generally cannot discriminate against their employees. However, roughly half of claims submitted to the EEOC are related to what happens after a discrimination claim is made. If an employee in New Mexico or anywhere else is subject to adverse action after taking part in a protected activity, that behavior may constitute discrimination. Generally, there must be a link between someone partaking in the protected activity and his or her employer’s materially adverse action.
Filing a charge with the EEOC or testifying at a hearing are both examples of protected activities in which an employee may engage. If someone is subject to materially adverse activities conducted by an employer, it may be retaliatory. This may be true even if the actions an employee complained about didn’t rise to the level of discrimination. Employees may be able to establish that they were victims of retaliation by pointing out that an employer had no written and consistent policy to investigate complaints.
It may also be possible to show that negative performance reviews were intentionally added to a worker’s file after he or she made a complaint. Employers may attempt to add negative items to a personnel file as proof that an employee did a poor job. Poor work performance may be a defense that employers can use to dispute retaliation claims.
Employer retaliation can take many forms. If an employee is denied training or demoted after filing a complaint or participating in an investigation of a complaint, those actions may be retaliatory in nature. An attorney may use statements from witnesses, other workers or the victims themselves in an effort to establish that retaliation took place in a given case. If successful, workers may be entitled to compensation or reinstatement to their former positions.