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Employment Retaliation: An Overview
During the Civil Rights Movement, Congress began to enact legislation aimed to end workplace discrimination, starting with the famous Title VII of the Civil Rights Act of 1964. This act, along with others such as the Equal Pay Act, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA), also prohibits the employment retaliation that can result when an employee files a discrimination charge.
Employment retaliation has three components: after an employee engages in a 1.) protected activity, the employer takes an 2.) adverse action against a 3.) covered individual. Protected activities include: confronting the boss about discrimination, threatening to file a charge of discrimination (a threat to exercise a legal right is not a crime), striking outside the office, refusing to obey a discriminatory order, or helping the authorities to investigate.
Adverse actions taken by an employer include: firing or threat of firing, increased surveillance, refusing to hire, or failure to promote. Rudely ignoring a colleague is not prohibited – the law does not punish inaction or define social etiquette. Making justified negative remarks about work performance is also permitted.
Thirdly, employment retaliation must be against a covered individual. Covered individuals are retaliated against because of their gender, race, color, religion, age, national origin, disability, or sex. These include, for example, sexual harassment and pregnancy discrimination. Covered individuals also include immediate family members; i.e., a husband cannot be fired because his wife filed a discrimination claim.
In addition, a number of states have “ethics acts,” prohibiting employers from firing employees who report illegal activities besides discrimination. Such activities include: financial misrepresentation, accounting fraud, misappropriation, and so on. On the other hand, often the law does not reach too far into the management of private businesses, and employees may not be protected from such retaliation.
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