Employment Retaliation: An Overview

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What Is Employer Retaliation?

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.

Retaliation is any adverse employment action against an employee who complained of discrimination, harassment, or a violation of workplace law. Employers cannot discourage or stop employees from participating in an investigation, regardless of whether the investigation is an in-house investigation or an investigation conducted by the government. Adverse action can be taken by the employer, managers, or fellow employees.

Employment retaliation has four components: after an employee engages in a (1) protected activity, the employer takes an (2) adverse action against a (3) covered individual and (4) the adverse action was caused by the employee’s protected activity.

What Is a Protected Activity?

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.

In order for the activity to be protected, the employer must honestly believe that he or she is opposing discrimination. The employee does not have to oppose discrimination against him or herself. The employee could be opposing discrimination against other co-workers and still be protected by retaliation laws.

The protected activity must be legal though. Unlawful activity is not protected. Such unlawful activity includes criminal activity, like stealing, or harassment, like calling someone racial slurs. 

What Is an Adverse Action?

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.

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.

Are There Any Defenses An Employer Can Use Against a Retaliation Claim?

There several defenses that an employer could use against a retaliation claim. The effectiveness of these defenses will differ based on what state you are in.

First, the employer can say that the adverse action was not caused by the employee’s protected activity. Proving causation is the most difficult part of the case for the employee. An employee cannot be fired for complaining or acting against discrimination, but an employee can still be terminated for poor job performance. 

The second possible defense is that even if the adverse action is linked to the employee’s protected activity, the employer can still say that the adverse action is necessary in order to prevent the employee from taking unlawful action against the employer.

For example, an accountant can be removed from his or her position despite the fact it is legally retaliation if the employer can show that the accountant would use her position to sabotage the employer’s operations.

The second defense, above, is a recent development in employment law, so be sure to ask your attorney to see if the defense could work in your state or circuit. 

Do I Need a Lawyer If I Think My Employer Is Retaliating?

Employment discrimination law is very complex and the laws are constantly changing. An experienced employment lawyer can help you if a retaliation claim is brought against you. If you are the victim of retaliation, a lawyer experienced in employment discrimination can help you assert your rights.

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Last Modified: 11-13-2013 10:16 AM PST

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