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Retaliation in the Workplace
When an employee exercises their rights and takes a legally protected action in the workplace, an employer who retaliates against them is in violation of the law.
Retaliation in the workplace includes any negative action that “might deter a reasonable person from engaging in protected activity.”
A number of federal and state labor laws created comprehensive protections against companies taking retaliatory actions against their employees who exercise their employee rights.
Employers who violate these protections expose themselves to liability and an employment attorney can help hold them accountable and resolve a case.
The essential elements of an illegal retaliation case consist of an employee having taken protected action, a subsequent adverse action taken by the employer, and a causal connection.
Below, we'll share in detail what every employee should know about work retaliation and provide examples that may match the fact patterns of your own employment situation.
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What is Considered Retaliation in the Workplace?
Retaliation occurs when an employer or a superior takes adverse action against you for engaging in a legally protected activity. An adverse action is any action taken by the employer to dissuade a reasonable employee from engaging in legally protected activities and exercising their rights.
Some common activities that commonly result in workplace retaliation include:
- Refusing to engage in illegal activities or practice, despite your employer's instructions
- Requesting a leave of absence under the Family and Medical Leave Act (FMLA)
- Filing a claim against your employer or supervisor with the U.S. Equal Employment Opportunity Commission (EEOC)
- Whistleblowing and exposing the employer's fraudulent practices
- Filing for worker's compensation benefits.
- Complaining to HR about harassing behavior.
- Reporting OSHA safety violations / unsafe working conditions
Adverse action is any negative action taken by the employer with the goal of deterring an employee from exercising any of the rights described above. These actions include:
- Demotion, or any other instance in which you lose status, responsibilities, or any seniority privileges related to your position
- Termination of employment
- Pay cuts or loss of regularly scheduled hours
- Reassignment to less desirable positions or positions that cause undue hardships
- Negative performance reviews at the next performance evaluation
Not all changes in the employer's behaviors constitute an unlawful retaliation. For example, your supervisor's behavior towards you may change following your complaint. If those changes don't affect your employment negatively, they're not retaliatory. However, if the supervisor takes any adverse employment action against you, that's retaliatory behavior.
Additionally, it must have been a legally protected action which results in the retaliatory actions. If it wasn't behavior covered under the state or federal employment laws, it may not consitute a violation. Speak with your attorney regarding your specific employment situation if you have questions.
Knowing the Signs of Employer Retaliation (With Examples)
There are several common retaliatory actions companies use to dissuade engagement in any legally protected activity.
Warning Signs
Here's a rundown of a scenario that includes several potential red flags which may constitute retaliation:
- Denied Promotion and Advancement Opportunities: As an example, let’s say you're up for promotion, and your co-workers and immediate superiors all agree that you're due to advance up the corporate ladder. However, there's a small issue with your filing a notice with the human resources department that your female co-worker was subject to sexual harassment by some members of the company's management.
As a result, your management chooses to withhold any promotions or advancement opportunities. This loss of opportunity is a perfect example of retaliation, as they're creating an unfair work environment and punishing you for exercising your rights. - Reassignment: Following the previous example, let's also assume that management has reassigned you to a position without providing any reasonable explanation or adequate reasons behind their actions. Finally, let's also assume that you're not adequately suited for a new position or a position that brings undue hardships, like severe conflicts between your work and private schedule.
The decline in working conditions and undue hardships may lead to poor performance and ultimately a constructive discharge. They are trying to avoid firing you outright, and use these actions to help them build a case against you, leading to the eventual termination of your employment contract or your quitting. - Retribution: Let's assume that your employer unlawfully terminated your contract, and you finally decided to file a retaliation claim with the EEOC. You win your workplace retaliation claim, but the employer now refuses to rehire you because of your previous filing. This also constitutes retaliation as long as the position you occupied remains available at the company and you're qualified for the job.
"Employers commonly risk exposing themselves to liability in the hopes of dissuading other workers from exercising their rights..."
How to Build a Strong Retaliation Case Against Your Employer
To establish a solid case and prove a causal connection when facing an employment law situation, it's critical to compile as much evidence as you can. Document everything. This evidence may be needed to help establish a causal connection between protected activity and adverse action.
Get a report about your initial complaint or participation in a legally protected activity to start. Conduct all communications with management and HR via email or text, so you have a written record.
Collect copies of all the documents that support your claim, including your personnel file, performance review reports, emails, memos, and other documents. This includes locating witnesses and requesting their testimony. Save these documents off company systems, if you get fired, you may lose access to work email network.
Seek legal advice if you don't already have representation. A qualified employment lawyer who can examine your case and answer questions about your rights as an employee. Your attorney can help you prepare and file a retaliation complaint with the EEOC. Your lawyer can help you through this process and if need arises, file a lawsuit claim depending on your behalf.
Based on the situation and evidence you provide, the EEOC will likely launch an investigation of your charge. Your employer can then suggest a settlement or mediation to avoid a trial, and your lawyer can help negotiate for the compensation and relief you deserve.
What You Need to Know About Winning a Retaliation Case
It's worth noting that the initial complaint which initiated legal protection does not need to be found to be sound to be afforded protection under the law - so long as it was in good faith.
If no law has been broken, or the initiatory action does not provide legal protection, the employer's actions may be unfair but not unlawful.
Once a protected behavior has been taken, if the employee has been punished, all that remains is to establish a causal connection. The investigation of the case will often uncover evidence to support the connection of a valid claim.
A valid workplace retaliation claim is a violation of federal and state employment laws. Holding the employer accountable can include recovery of economic monetary damages. Large employers caught out have a strong incentive to settle claims in the hopes of making the matter go away. Compensation won is either paid out from their EPLI insurance or from the company's pockets.
Final Considerations
Federal law protects employees from retaliation after engaging in a legally protected activity. If you suspect your employer is retaliating against you, and they won't correct the problem, an escalation may be called for. You can take a retaliation charge to the EEOC for investigation, and get help from an employment attorney to explore legal options.
If the employers actions will deter a reasonable person from making a complaint in a similar situation, it constitutes illegal retaliation. When the three elements of retaliation exist: protected action, adverse employer action, causal connection - you likely have a strong claim. Legal options include an EEOC charge or litigation and may result in significant compensation in an effort to make the victim whole.
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