Employment Retaliation: An Overview

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 What Is Employer Retaliation?

At the federal level, congress has passed multiple Acts which are intended to end workplace discrimination. These same Acts protect certain employee activities. Some examples of these
Acts include:

These acts prohibit employer retaliation that might result when an employee files a discrimination charge.

Employer retaliation refers to any adverse employment action taken against an employee who has filed a complaint of:

  • Discrimination;
  • Harassment; and/or
  • A violation of workplace law.

An example of this would be if an employer terminates an employee after they filed a complaint based on being denied a promotion because of their age.

Because of the protections provided by these and other Acts, employers are prohibited from discouraging or stopping employees from participating in any investigations. This is true regardless of whether the investigation is in-house or conducted by a governmental agency.

Retaliation or adverse action is also prohibited by managers and fellow employees. According to federal law, it is also illegal for an employer to terminate an employee from their position in response to them exercising their various employment rights.

What Are Some Examples Of Employment Retaliation?

Discrimination retaliation is an especially complicated form of employment discrimination and retaliation. An example of this would be if an employer has hired or fired an employee based only on their race. If the employee is treated adversely after they claim about being harassed in the workplace, or terminated on the basis of their race, the employer could be liable for retaliation. If a female-identified employee were to complain to management about being sexually harassed while at work, and is later assigned new duties with lower bonus potential, that would be another example of discrimination retaliation.

These are employer actions that could be considered illegal, due to the fact that employers are not to discriminate on the basis of gender identity and/or presentation by imposing privileges or work conditions that result in the employee’s pay being impacted in any way. Additionally, such actions could be considered retaliation if the employer acted in order to protect the complainant, but the results are that certain workplace privileges are denied.

To continue this example, say the employer were to transfer the female-identified employee to another department. This would be for the purpose of preventing the actor from further harassing the female-identified employee. However, this actually negatively impacts the female-identified employee because the result is that they have lost seniority, as well as the potential for higher commissions.

Although the employer may have had good intentions when taking such actions, the impact is that the employee is harmed by the employer’s actions. This is why those actions may be considered retaliatory in nature.

Some of the most common examples of employment retaliation include, but is not limited to:

  • Declining to hire a claimant;
  • Terminating a claimant;
  • Reducing the claimant’s compensation or work benefits;
  • Having the claimant moved to a different department when doing so is against their will;
  • Requiring the claimant to participate in activities outside of their scope of employment as a form of punishment;
  • Forcing early retirement on an employee who does not wish to retire yet;
  • Providing unnecessarily negative or baseless job evaluations;
  • Demanding that the claimant drop or waive their right to sue in exchange for a more favorable position in the company; or
  • Increased surveillance of the claimant during working hours.

It is important to note that the law does not punish inaction, nor does it define social etiquette. An example of this would be how ignoring a colleague is not prohibited, and would not likely be considered to be an adverse action according to employment laws.

There are four main components that are used to determine what constitutes employment retaliation:

  1. An employee engages in a protected activity;
  2. The employer takes an adverse action against the employee;
  3. The employee belongs to a protected class, and as such they are a covered individual; and
  4. The adverse reaction was directly caused by the employee’s protected activity or class.

What Is a Protected Class Or Activity?

A protected class is a group of people who qualify for specific special protections under a law or policy. To put it simply, a protected class is something a person cannot change about themselves. A person may not be discriminated against based on the following characteristics:

  • Age;
  • Race;
  • National origin;
  • Religious beliefs or lack thereof;
  • Gender identity;
  • Sexual orientation;
  • Political ideology;
  • Disability;
  • Pregnancy; and/or
  • Veteran status.

The Equal Employment Opportunity Commission, or the EEOC, oversees the enforcement of anti-discrimination laws as they apply to employment. The above mentioned classes are federally protected.

Groups that are not considered to be protected classes include:

  • Education level;
  • Economic class;
  • Social membership;
  • Undocumented immigrants; or
  • Those with criminal records.

Protected activities are activities that an employee is legally able to participate in, without fear of retaliation from their employer. Some examples of protected activities include, but may not be limited to:

  • Confronting their employer about discrimination in the workplace;
  • Threatening to file discrimination charges;
  • Threatening to exercise other legal rights;
  • Striking outside of their office;
  • Joining a union;
  • Refusing to obey any discriminatory or dangerous orders; or
  • Assisting authorities in investigations, whether conducted in-house or by a governmental agency.

It is important to note that in order for an activity to be protected, it must be legal. Unlawful activity is not protected, such as theft or harassment. A common example of harassment is the use of racial slurs.

Additionally, an employee does not need to oppose discrimination against themselves in order to be protected from adverse actions or retaliation. What this means is that an employee could be opposing discrimination against a coworker, and would remain protected by these retaliation laws.

How Do I Prove Employment Retaliation?

In order to prove that you have been retaliated against, you must first establish your claim for discrimination. This includes proving that the employer treated you differently because of your protected status, and that the employer acted deliberately. As previously discussed, there are four components to employment retaliation. You will need to provide evidence fulfilling all four of those components.

Some examples of sufficient evidence include:

  • Written evidence of the discrimination and/or retaliation, such as email, text messages, and other communication;
  • Verbal communications, such as statements made during the interview or during meetings; and
  • Supporting documents, such as pay stubs.

It is important to note that you do not need to belong to a protected class which would form the basis of the discrimination; you may still be able to establish your claim of retaliation. An example of this would be how if the employer acted adversely against you for participating in an investigation, it could be considered retaliation.

Are There Any Defenses That An Employer May Use Against An Employment Retaliation Claim?

The employer may claim that the adverse action was not actually caused by the employee’s protected activity. Proving causation will be the most difficult part for an employee, because an employee cannot be fired for complaining or acting against discrimination. However, they can be fired for poor job performance. It would be easy for an employer to claim that as the reason for termination.

Even if the adverse action is connected to the employee’s protected activity, the employer may claim that the adverse action is actually necessary in order to prevent the employee from taking unlawful action against the employer.

An example of this would be if an employee is being removed from their position despite the fact that it is legally considered to be retaliation, because the employer can prove that the employee would use their newly gained position to sabotage the employer’s operation.

Do I Need An Attorney For Employment Retaliation?

If you are experiencing retaliation from your employer for any reason, you will want to consult with an experienced and local discrimination lawyer. Because state laws can vary widely in terms of employment law, it is suggested that you work with an area attorney to ensure you receive the most relevant legal advice according to your state’s laws.

An experienced discrimination attorney can help you determine your best course of legal action, and will also be able to represent you in court, as needed, while protecting your rights.


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