Most employment discrimination laws not only make it illegal to discriminate against protected groups, but also prohibit retaliation against an employee who makes a claim of discrimination or harassment in the workplace.
Retaliation is any adverse employment action taken against an employee who complained of discrimination, harassment, or a violation of workplace law. Adverse action against an employee who participates in the investigation of one of these complaints is also considered retaliation.
What constitutes an adverse employment action is different from state to state. Generally, adverse employment action is defined broadly as any adverse treatment that would be reasonably likely to deter protected activity such as making a claim of discrimination. Some examples that might be considered adverse employment action include:
Even if you have good intentions, you may end up retaliating against the employee without intending to. For example:
In the above example, the focus was on the complaining employee. You made a change to her schedule as opposed to taking steps to stop the wrongful conduct. In order to avoid retaliation claims, the first step is to ensure that you focus on the wrong that has or is being done, not the injured employee. You need to fix the problem, not remove the injured employee from the problem situation.
There are many steps you can take to reduce the likelihood of retaliation in the workplace. Here are a few steps to consider:
Adverse employment action only constitutes retaliation if it is done in response to an employee asserting his/her rights under workplace law. Adverse action is allowed against employees for ordinary job performance issues such as:
If you are concerned that an employee may file an unfounded claim of retaliation in response to an adverse employment action, it is good practice to create a record of the employee conduct justifying the adverse action (negative performance reviews, emails regarding poor employee behavior, negative feedback from company clients, etc.).
Employment discrimination law is very complex and varies from state to state. An experienced employment lawyer can help you is a retaliation claim is brought against you. Also, if you feel you are the victim of retaliation, a lawyer experienced in employment discrimination can help you figure out what steps you need to take.
Last Modified: 09-21-2017 10:04 PM PDTLaw Library Disclaimer
We've helped more than 4 million clients find the right lawyer – for free. Present your case online in minutes. LegalMatch matches you to pre-screened lawyers in your city or county based on the specifics of your case. Within 24 hours experienced local lawyers review it and evaluate if you have a solid case. If so, attorneys respond with an offer to represent you that includes a full attorney profile with details on their fee structure, background, and ratings by other LegalMatch users so you can decide if they're the right lawyer for you.