Out of thousands of discrimination cases reported to the Equal Employment Opportunity Commission (EEOC) in the last decade, almost 50 percent of complaints included an alleged retaliation. In fact, the EEOC suggests that employer retaliation is one of the most common forms of workplace discrimination.
Improving your understanding of employer retaliation can help you better decide if you should take legal action. Employers can be held liable for retaliating against an employee who files or communicates a complaint regarding their legal rights.
What Is Employer Or Workplace Retaliation?
Workplace retaliation occurs when your employer takes a material adverse or negative action against you after you file a complaint or engage in a “protected activity,” such as reporting workplace discrimination.
An adverse action taken against you can be subtle or obvious. If you were fired or laid off because of reporting a supervisor’s inappropriate behavior, then the retaliation is easy to spot. However, retaliation can also be more subtle, like reassigning you to a less lucrative position or making adjustments to your work schedule.
When Are You Protected From Workplace Retaliation?
State and federal law protect you in taking action that asserts your rights as an employee. There are several actions that are protected from workplace retaliation.
The following are examples of activity protected from employer retaliation:
- if a witness files a claim, complaint, or lawsuit against the employer
- communicating with a manager or supervisor about harassment or discrimination
- responding to questions asked during an employer’s investigation into alleged harassment or discrimination
- refusing to comply with orders that could result in discrimination
- refusing or resisting sexual advances, or helping to prevent sexual harassment by intervening
- requesting accommodations for a disability or religious act
- asking a manager, supervisor, or coworkers about salary in pursuit of uncovering discriminatory wages
What Are Some Examples Of Employer Retaliation?
If you have reported or objected to harassment, discrimination, or other conduct that violated your rights as an employee, then you may fear retaliation from your employer. However, workplace retaliation is against the law.
An employer might be engaging in retaliation if the employer:
- gives an employee a lower or unfair performance evaluation
- transfers the employee to a less lucrative position
- verbally or physically abuses the employee
- threatens to report, or actually does report, the employee to the police
- increasingly scrutinizes the employee
- increases the employee’s workload, or makes their work more difficult
- fires, lays off, or demotes an employee
- denies overtime pay or a promotion
Common Forms Of Workplace Retaliation
Although company policies may also be in place, workplace retaliation is an illegal activity under state and federal labor laws. Title VII of the Civil Rights Act of 1964, which prohibits discrimination of any kind in the workplace, is a federal law which makes it illegal for employers to retaliate.
Various labor laws prohibit employer retaliation when an employee:
- exercises their rights under the law in a reasonable way
- reports their employer’s suspected violation to local authorities or government agencies
- gives testimony or participates in legal proceedings against the employer as a witness or plaintiff
Workplace retaliation can occur in a wide range of circumstances and situations. There are different types of retaliation claims, including the following:
Whistleblowers Claims
Whistleblowers speak out against employers for breaking laws or regulations.
The Whistleblower Protection Act (WPA) protects employees who report violations of law, rule, or regulation by their employer. This currently includes claims of Paycheck Protection Program (PPP) fraud.
The FLSA
The Federal Labor Standards Act (FLSA) protects American workers from retaliation for unpaid wage, minimum wage, or overtime complaints.
Union Membership
It’s illegal for employers to retaliate against employees for joining a union, participating in union events, or forming a union. Labor laws, as well as state right to work laws, also make it illegal for employers to retaliate against employees for denying or resigning from a union membership.
Claiming Benefits
Although this may vary depending on state law, it’s generally illegal for employers to retaliate against employees who try to claim benefits for workers’ compensation.
Harassment Or Discrimination Claims
It’s illegal for employers to retaliate against employees who file a claim for harassment or discrimination. These claims are wide-ranging and can include sex discrimination, race discrimination, age discrimination, sexual orientation discrimination, religious discrimination, and many other forms of harassment or discrimination.
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What To Do If You Suspect Workplace Retaliation
If you suspect workplace retaliation, you should contact an employment law attorney who specializes in employee right as soon as possible.
How An Employment Lawyer Can Help Your Workplace Retaliation Case
Even if you have filed a complaint with the EEOC or a state agency, you should still hire an attorney. It will benefit you to have an employer retaliation lawyer to assist you in navigating the agency process.
Evidence Of Retaliation
Your attorney will help prove your case by looking at all the evidence. They’ll want to see any documents regarding the alleged harassment or discrimination, as well as the retaliation. It’s crucial to keep all documentation that may relate to you claim. It may also be helpful to keep a list of witnesses that may be able to support your claim.
If you filed a formal complaint with your employer, your attorney will want to see that complaint, as well as any relevant emails, memos, letters, or anything else you wrote down.
Assessing Your Losses
If you choose to hire an attorney and file a lawsuit against your employer, you’re likely be pursuing damages. Damages are financial compensation for any losses you have suffered as a result of your employer’s illegal actions. Your workplace retaliation attorney can help you assess your losses, such as lost wages due to a demotion or as a result of termination from your employment.
To assist in proving your losses, it’s helpful to provide your attorney with pay stubs or other documents that show your earnings before and after your employer retaliated against you. Your employment retaliation attorney will also help you consider whether you’d like to seek damages for any emotional pain and suffering you have experienced.
Your Credibility As A Witness
If you move forward with a lawsuit, you’ll be the plaintiff in a case against your employer. Your employee rights attorney will evaluate your credibility as a witness, as well as help prepare you for giving potential testimony before a judge or jury.
How To Prove Employer Retaliation In The Workplace
To win a retaliation case against your employer, you and your attorney will need legal proof of retaliation.
To prove retaliation, you and your attorney will need to show:
- you engaged in a protected activity
- your employer took a negative or adverse action against you
- your protected activity caused the employer to take negative action against you
Protected Activity
Protected activity can refer to participating in a process that opposes discrimination or harassment. The following are types of protected activities:
Participation In Investigation
You may be protected from workplace retaliation if you filed a charge, assisted, testified, or participated in an agency investigation, hearing, or legal proceeding against your employer. Your participation is protected under Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act of 1967 (ADEA), and other labor laws.
Opposition
You may be protected from retaliation for opposing any unlawful conduct by your employer. This includes communicating your stance against your employer’s perceived harassment, discrimination, or unlawful behavior.
You may also be protected from retaliation for participating in an internal investigation.
Negative Action
You and your attorney will also have to show that your employer retaliated with a “materially adverse” action. which means any action that would discourage a reasonable person from participating in protected activity. Examples of materially adverse actions are terminating your employment, cutting your hours, or lowering your pay.
Causation
Your employer retaliation attorney must prove that there was a causal connection between your protected activity and the negative action of your employer. Proving that your protected activity was the cause of the employer’s action can be difficult.
However, your attorney can help you prove causation by showing three things:
- Timing: The timing of your employer’s negative action matters. If you and your attorney can prove that only a short time occurred between your action and your employer’s retaliation, then it will be very helpful for proving your case.
- Your employer’s awareness: It will help prove causation if you can show that your employer, or the person who retaliated, was aware or had knowledge of your complaint, report, or protected activity before they took a negative action.
- No other reasonable explanation: It will be a major win for your case if your employer can’t come up with a reasonable explanation for their actions. A judge or jury may be less likely to believe the employer if they fail to give a reason for what they did.
Other evidence, coworker testimony, history of the employer’s social media account, and other patterns of behavior between the employee and employer can also be used as effective evidence by a skilled and qualified attorney.
Top-Rated Workplace Retaliation Attorneys Serving The U.S.
At the law offices ofFlorin|Roebig, we specialize in employment law and can help you pursue damages for any losses you suffered because of employer retaliation. You deserve financial compensation if your employer hurt your career because you stood up against discrimination, harassment, or other malfeasance.
Our qualified team of experienced employer retaliation attorneys includes:
- Wil H. Florin, B.C.S.
- Tommy D. Roebig, B.C.S.
- Parker Y. Florin, LL.M.
- Taylor D. Roebig
We Are Nationally Awarded Lawyers
Contact Us Today For Help Filing An Employer Retaliation Claim
If you believe you were the victim of workplace retaliation, you should take legal action as soon as you can. Even if you’ve filed a complaint with EEOC, our team at Florin|Roebig can still evaluate your case, provide legal advice, and file a lawsuit on your behalf. We offer a confidential and free consultation to help you decide if legal action is the best course.
To learn more about your rights as an employee, or to start a free case evaluation, contact our law firm today.
