Employment-Retaliation

What is Employment Retaliation?

Employment retaliation occurs when an employer takes negative action against an employee for engaging in a legally protected activity. Such activities include filing a discrimination complaint, participating in an investigation, or opposing unlawful practices in the workplace. Retaliation can take various forms, such as termination, demotion, harassment, reduced hours, or other adverse employment actions.

The core principle of retaliation law is that employees should be able to assert their rights without fear of punishment. Retaliation claims are typically filed after an employee faces adverse treatment because they engaged in one of the following protected activities:

• Reporting or opposing discrimination or harassment.
• Filing a complaint with the Equal Employment Opportunity Commission (EEOC) or similar state agency.
• Participating in an investigation, lawsuit, or proceeding related to discrimination or harassment.
• Whistleblowing about unlawful activity or safety violations (under laws like the Whistleblower Protection Act).
• Requesting accommodations for a disability or pregnancy.
• Engaging in union-related activities or organizing.

Types of Employment Retaliation

Termination (Firing)

• The most obvious and severe form of retaliation occurs when an employee is terminated (fired) after engaging in a protected activity.
• Example: An employee is fired shortly after filing a sexual harassment complaint with HR.

Demotion or Disciplinary Action

• Employers may retaliate by demoting an employee, reducing their responsibilities, or subjecting them to unwarranted disciplinary action.
• Example: An employee is demoted to a lower position after they report safety violations in the workplace.

Reduction in Pay or Hours

• A retaliatory act could involve reducing an employee’s hours or salary, making it financially difficult for them to remain employed.
• Example: After a whistleblower reports fraudulent activities, their employer cuts their working hours drastically.

Harassment or Hostile Work Environment

• Retaliation can also take the form of harassment, including verbal abuse, intimidation, or exclusion from work activities after a protected complaint.
• Example: After a racial discrimination complaint, an employee may be subjected to bullying or derogatory comments.

Failure to Promote or Denial of Benefits

• Retaliation can involve the unjust denial of a promotion or career advancement opportunity after an employee has engaged in a protected activity.
• Example: An employee who reports age discrimination is passed over for a promotion despite their qualifications.

Negative Performance Reviews

• An employer might provide unjustified negative performance reviews as a retaliatory measure, even though the employee’s performance hasn’t changed.
• Example: An employee’s performance review drops significantly after they file a claim of workplace harassment.

Legal Protections Against Retaliation

Both federal and state laws protect employees from retaliation. The U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces most retaliation claims related to discrimination or harassment complaints.

Key Legal Protections:

• Title VII of the Civil Rights Act of 1964 – Provides protection against retaliation for employees who file complaints or participate in investigations related to employment discrimination.
• Americans with Disabilities Act (ADA) – Protects employees from retaliation after requesting reasonable accommodations for disabilities.
• Age Discrimination in Employment Act (ADEA) – Protects older workers from retaliation after filing age discrimination complaints.
• Family and Medical Leave Act (FMLA) – Prohibits retaliation against employees who request or take leave under the FMLA.
• Occupational Safety and Health Act (OSHA) – Protects employees from retaliation for reporting safety violations.
• Whistleblower Protection Act – Protects federal employees from retaliation after reporting misconduct or violations of law.

What to Do if You Experience Retaliation at Work

If you believe you are experiencing retaliation, it is crucial to take the following steps:

Document the Retaliatory Actions:

• Keep a detailed record of any adverse actions taken against you (e.g., termination, reduction in pay, negative performance reviews), including dates, times, and any witnesses.
• Retaliation often occurs soon after engaging in a protected activity, so documenting the timeline of events is vital.

Report the Retaliation Internally:

• If your workplace has a reporting or grievance procedure, use it to formally report the retaliation. This could involve contacting Human Resources or a supervisor not involved in the retaliation.
• Many companies have anti-retaliation policies, so reporting may resolve the issue internally.

File a Formal Complaint with the EEOC or State Agency:

• If the retaliation is related to discrimination or harassment, you can file a formal complaint with the Equal Employment Opportunity Commission (EEOC) or your state’s fair employment practices agency.
• You typically have 180 days from the date of the retaliatory action to file a charge with the EEOC, but this timeframe can be extended under certain circumstances.

Consult an Employment Lawyer:

• If you face retaliation and believe your rights have been violated, it may be in your best interest to consult with an experienced employment attorney. A lawyer can help assess the strength of your claim, represent you in legal proceedings, and guide you through filing a lawsuit if necessary.

Seek Legal Remedies:

• If your retaliation claim is successful, potential remedies may include reinstatement to your former position, back pay, compensatory damages, and attorney’s fees. In certain cases, punitive damages may also be available if the retaliation was especially egregious.

Legal Articles and Statutes Relevant to Employment Retaliation

• Title VII of the Civil Rights Act of 1964 – 42 U.S.C. § 2000e-3 (prohibits retaliation for filing a discrimination complaint or participating in an investigation)
• Americans with Disabilities Act (ADA) – 42 U.S.C. § 12203 (prohibits retaliation against employees who request reasonable accommodations)
• Age Discrimination in Employment Act (ADEA) – 29 U.S.C. § 623(d) (prohibits retaliation for opposing age discrimination or filing a claim under the ADEA)
• Family and Medical Leave Act (FMLA) – 29 U.S.C. § 2615(a) (prohibits retaliation for taking FMLA leave)
• Occupational Safety and Health Act (OSHA) – 29 U.S.C. § 660(c)(1) (prohibits retaliation for reporting safety violations)
• Whistleblower Protection Act – 5 U.S.C. § 2302(b)(8) (prohibits retaliation against federal employees who disclose violations of law)

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