In a perfect world, everybody would be able to go to their jobs, put in an honest day’s work, and thrive in a quality work environment. Unfortunately, this is often not the case. Sadly, many people experience harassment, discrimination, and other unfair and unlawful practices at work. Sometimes, discriminatory employers threaten workers with termination if they speak up. 

Here’s what to know about retaliatory discharge and whether you might be affected. 

What Is Retaliatory Discharge?

There are numerous federal and state laws and regulations that protect workers. These exist so that they can work in safe environments without fear of harassment from coworkers or employers. 

When an employee asserts their rights by filing a claim against their employer or supporting others who oppose their employer’s unlawful practices, those actions are considered protected actions. When an action is protected, employees cannot lawfully be fired for engaging in those actions. 

Firing an employee for protected actions is considered retaliatory discharge

For example, suppose that an employee claims to have been sexually harassed by their employer, and the employee then files a suit for sexual harassment against the employer. The employer cannot then legally fire the employee, at least not for filing the claim. 

If, however, the employee files the claim but then refuses to show up for work for three months straight, has no excuse for their absences, grossly mismanages files, and negligently loses employer resources, the employer may legitimately have an excuse to fire the employee. 

Thus, claims of retaliatory discharge may be difficult to prove, because the employee making the claim must show that they were fired for a reason not related to their workplace performance. 

When Is Retaliation Unlawful?

Some states are considered “at will employment” states, meaning employers can fire an employee at any time for any reason. But, even in those states, it is not legal to fire an employee in retaliation for certain protected actions. 

Federal law specifically protects employees who make claims about workplace discrimination or harassment. Those complaints may be made either within the office such as going to a Human Resources office or outside of the office such as with state or federal agencies. 

Additionally, an employee cannot lawfully be fired for cooperating with an investigation or serving as a witness in an investigation of discrimination or harassment. 

Some states also protect workers from termination for filing workers’ compensation claims

These are federal protections. Some states may have even more stringent protections in place to prevent firing employees for coming forward with claims of discrimination, harassment, or an unsafe workplace. 

Can I Be Retaliated Against Without Being Fired?

Yes. In many cases, employers don’t outright fire an employee after they have taken a protective action. Instead, employers may do things to make the work environment worse. 

For instance, they may force an employee to change offices to a less desirable location. They may suddenly exclude an employee from team functions, staff meetings, or other employer sanctioned social gatherings. They may begin giving the employee bad performance reviews when the employee never received a bad review prior to taking protected action. 

There are many ways an employer can retaliate against an employee who’s engaged in a protected action against the employer without rising to the level of terminating the employee. 

What Happens If I File a Claim for Retaliatory Discharge?

The biggest issue most cases of retaliatory discharge face is the employee’s ability to prove that they were fired in retaliation. 

In retaliatory discharge cases, employees must prove the following elements of their case: 

  • The employee engaged in a protected activity;
  • The employee’s job or career were materially and adversely affected; 
    • Generally, the employee needs to show that their job or career has suffered substantially. Being fired, demoted, reassigned to less substantive or lucrative work, being given less expensive accounts to manage, and other examples may be ways to show that an employee has been adversely affected by their employer’s actions; and
  • The employer’s actions were directly the result of the employee’s claim. 
    • As previously discussed, this can be the trickiest part of a retaliatory discharge claim. Employees generally must show that the discharge was not the result of workplace performance. 

Documenting an employee’s workplace performance before and after they filed a claim may help to show that their alleged poor performances were the result of retaliation. Furthermore, recording all other actions the employer takes against the employee, particularly since filing the claim or taking protected action, will help strengthen an employee’s case. 

Should I Hire a Lawyer if I Have Issues with Retaliatory Discharge?

Employees who have been retaliated against or think they may have been are often in a significantly stressful situation. But, employees do have rights, even in the most stringent at-will employment state. 

It’s important to contact an employment law attorney as soon as possible. The sooner you determine your rights and start collecting evidence, the stronger your case may be.