• Justin Hein

Workplace Retaliation

Retaliation is the most frequent basis of complaints of violations of federal employment law and the most common finding in such cases. Find out more about it.

What is retaliation?

Retaliation occurs when an employer takes a materially adverse action because an applicant or employee asserts rights protected by law. Asserting rights associated with the prevention of workplace discrimination or harassment is called a "protected activity."

Sometimes there is retaliation before any "protected activity" occurs. For example, an employment policy itself could be unlawful if it discourages the exercise of the aforementioned rights.

What must someone show to prove a legal claim of retaliation?

In a case alleging that an employer took a materially adverse action because of protected activity, legal proof of retaliation requires evidence that:

  1. An individual engaged in a protected activity;

  2. The employer took a materially adverse action; and

  3. That action had a causal connection to the action experienced by the employee.

What is a protected activity?

Generally, a "protected activity" is participating in the process of ensuring a workplace free of discrimination or harassment. This could be posting required posters, distributing required communications, providing required training, fielding complaints, or conducting a competent investigation. However, each of these is the least likely activity one would be engaged in that would trigger retaliation rights.

Rather, the most likely activity qualifying as protective is the lease desirable - experiencing or witnessing discrimination or harassment in the workplace. That activity is also the most passive--it literally happens to you without your consent or warning.

Examples of Protected Activity

Federal and state laws prohibit punishing job applicants or employees for asserting their rights to be free from employment discrimination including harassment.  Asserting these rights is called "protected activity," and it can take many forms.  For example, it is unlawful to retaliate against applicants or employees for:

  • filing or being a witness in an EEO charge, complaint, investigation, or lawsuit

  • communicating with a supervisor or manager about employment discrimination, including harassment

  • answering questions during an employer investigation of alleged harassment

  • refusing to follow orders that would result in discrimination, harassment, retaliation, or any other violation of the law

  • resisting sexual advances, or intervening to protect others

  • requesting accommodation of a disability or for a religious practice

  • asking managers or co-workers about salary information to uncover potentially discriminatory wages.

  • Participating in any complaint process as a complainant, witness, or alleged violator.

Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe it.

Consequence for false accusations

Engaging in "apparent protected activity," however, does not shield an employee from all discipline or discharge. Employers are free to discipline or terminate workers so long as their resulting conduct was motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences.  Specifically, if the employer determines that the underlying complaint is false--AND--borne out of an effort by the complainant and/or witnesses to harm the alleged harasser, then the employer is free to discipline those involved as appropriate.

However, the burden to classify something as a false accusation is not just to prove or disprove it. It must be more. Otherwise, an employer could be accused of taking a hyper-vigilant approach to "false" accusations in an effort to discourage resistance to or complaints about future discrimination.

So, such avenue exists. But pursuit of such a paper-thin strategy is typically avoided.

Examples of Employment Retaliation

Depending on the facts, it could be retaliation if an employer acts because of the employee's protected activity to:

  • reprimand the employee or give a performance evaluation that is lower than it should be;

  • transfer the employee to a less desirable position;

  • engage in verbal or physical abuse;

  • threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police);

  • increase scrutiny;

  • spread false rumors;

  • treat a close co-worker or family member negatively (for example, cancel a contract with the person's spouse);

  • make the person's work more difficult (for example, punishing an employee for a complaint by purposefully changing his/her work schedule).

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