Retaliatory discharge is an employment law term which refers to when an employer terminates an employee for filing a complaint against the company. For example, if an employee reports a company for encouraging sexual harassment in the workplace and the employer discovers the complaint and, as a result, terminates the employee, it would be considered retaliatory discharge.

A retaliatory discharge termination is illegal. It is a form of unlawful or wrongful termination. An unlawful or wrongful termination occurs when an employer terminates an employee for an unauthorized or illegal reason, such as the example above.

There are, however, different forms of unlawful or wrongful termination, such as discrimination or breach of contract. The prohibition on retaliatory discharge exists specifically to protect employees who report improper or illegal acts that occur within the workplace.

Employer retaliation may include, but is not limited to:

  • Not hiring the claimant;
  • Terminating the claimant;
  • Reducing the compensation or benefits of the claimant;
  • Moving the claimant to a different department against their will;
  • Requiring that the claimant participate in activities outside of their scope of employment;
  • Forcing the claimant to retire early;
  • Providing an unnecessarily negative job evaluation;
  • Demanding that the claimant waive or drop their right to sue the employer in exchange for a more favorable position in the company; or
  • Increased surveillance of the claimant.
  • It is important to note that the law does not punish inaction, nor does it define social etiquette. For example, ignoring a co-worker is neither prohibited nor considered to be an adverse action under employment law.

What are Protected Activities in Employment Law?

As previously noted, employees are protected by law for reporting activities which occur in the workplace, including:

It is important to note that the previous list does not include every type of protected activity an employee may report. Those listed above are the main activities which are discussed and protected by federal law. There may also be additional protected activities which are found in state employment laws and based upon the circumstances of each individual case.

When is Retaliation Unlawful?

The majority of employees in the United States are considered at-will employees. This means that their position will last for an unspecified amount of time as opposed to independent contractors. An employer can terminate an at-will employee at any time and with or without cause.

The term without cause means that an employee may be terminated for any reason or for no reason, so long as the reason is not unlawful or illegal. Because retaliatory discharge is an illegal form of termination, it is illegal regardless of whether the individual is an at-will employee or an independent contractor.

Additionally, most state laws and federal laws prohibit an employer from terminating an employee who files a complaint for harassment or discrimination in the workplace. These protections extend to any location where an employee makes their complaint, including at:

  • The company’s Human Resources department;
  • A state employment agency; or
  • A federal government office.

For example, if an employee has a complaint regarding discriminatory practices, they will be required to file a report with a state or federal office, such as the Equal Employment Opportunity Commission (EEOC). The agency will then review the employee’s complaint and conduct an investigation into the employer’s conduct. In some cases, this will require the full cooperation of all of the employees within the company.

If, during the investigation, an employee’s co-worker supports the complaint, an employer cannot terminate the co-worker for cooperating with the EEOC during the investigation. If the co-worker is terminated due to cooperation with the investigation, it will be considered an act of retaliatory discharge.

Additionally, some jurisdictions also offer protections for an employee who files a workers’ compensation claim. An employer is prohibited from terminating an employee for seeking workers’ compensation.

If an employer terminates the employee for seeking this benefit, it is a retaliatory action and the employee’s termination will be considered illegal. If this occurs, the employee may bring legal action against the employer.

Can I be Retaliated Against Without Being Fired?

Employees may face many consequences for doing the right thing in the workplace, such as wrongful termination or retaliatory discharge for filing any type of complaint, including discrimination or sexual harassment complaints. In some cases, however, an employer will be too wise to openly violate the law so they will attempt to create an unpleasant work environment for the employee instead.

For example, the employer may not approve a raise or a promotion by giving the employee a negative performance review even though the employee did not do anything wrong. An employer may also begin excluding the employee from team events and social gatherings. If an employee is an independent contractor, their employer may give them less work or reduce their work hours.

There are numerous forms of retaliation which an employer can engage in without outright terminating the employee. This should not deter employees from reporting their employer’s illegal actions. Instead, the employee should begin collecting evidence if they believe they may be retaliated against for filing a complaint.

What is Needed to Prove Retaliatory Discharge?

It can be very difficult to prove retaliatory discharge occurred. The legal requirements for proving retaliatory discharge vary by state. In general, an employee must prove three elements to successfully claim retaliatory discharge, including:

  • That the employee was terminated or punished in some way by the employer;
  • That the employee engaged in activities which are considered protected under the law, or that the employee properly opposed the employer’s illegal conduct; and
  • That there is a clear link between the protected activity and the employee’s subsequent termination.

As previously noted, it is difficult to prove retaliatory discharge. This type of case requires a large amount of evidence. Specifically, an employee will be required to show that there was a connection between their termination and their participation in a protected activity.

There are two main sources of evidence which are necessary for an employee to prove that they were terminated in retaliation for an action. These sources include:

  • Direct evidence; and
  • Circumstantial evidence.

Direct evidence may come in the form of a written statement or a verbal statement. The statement should demonstrate the link between the employee’s termination and the protected activity. Direct evidence may include:

  • Correspondence, including:
    • emails;
    • letters;
    • text messages; and
    • other forms of communication;
  • Conversations;
  • Voicemails; and
  • Witness statements.

Circumstantial evidence, also called indirect evidence, is evidence which implies that there was a connection between the employee’s termination and their conduct. For example, if the employee can demonstrate that each time an employee files a complaint about the company, that employee is terminated, this may be used as circumstantial evidence which establishes a pattern of retaliatory discharge on the part of the employer.

Do I Need an Attorney for Help with Proving Retaliatory Discharge?

It is essential to have the assistance of an wrongful termination lawyer when trying to prove retaliatory discharge. It is typically difficult to prove wrongful termination claims which are based on retaliatory discharge.

Unless overwhelming evidence exists, an employer will have a significant advantage and will be able to claim they terminated the employee for another reason. Therefore, if you think your employer wrongfully terminated you in retaliation for making a complaint, it is important to contact an attorney as soon as possible.

Your lawyer will be able to advise you regarding the applicable laws, your rights as an employee, and whether you have a claim. Your attorney can assist you with gathering evidence, and filing your case and will represent you in court. In addition, if your employer is willing to settle your case, your attorney can represent you during settlement negotiations.