Out of thousands of discrimination cases reported to the Equal Employment Opptorunity 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. Managers, supervisors, and other powerful officials can be held liable for retaliating against an employee who files or communicates a complaint.
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.” A protected activity is anything that asserts your rights as an employee.
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?
The EEOC protects you in taking action that asserts your rights as an employee. There are several actions that are protected from workplace retaliation.
The following examples make it unlawful for employers to retaliate, such as when an employee:
- is a witness or files a claim, complaint, or lawsuit against the employer
- communicates with their manager or supervisor about harassment or discrimination
- responds to questions asked during an employer’s investigation into alleged harassment or discrimination
- refuses to comply with orders that could result in discrimination
- refuses or resists sexual advances, or helps to prevent sexual harassment by intervening
- requests accommodations for a disability or religious act
- asks their manager, supervisor, or coworkers about salary in pursuit of uncovering discriminatory wages
Examples Of Employer Retaliation
If you’ve been the victim of 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
- spreads false rumors about the employee
- takes negative action against the employee’s family
- 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 illegal under state and federal labor laws. Title VII of the Civil Rights Act of 1964, which prohibits discrimination of any kind in the workplace, also 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 as a witness or plaintiff
Workplace retaliation can occur in a wide range of circumstances and situations, yet there are several forms of retaliation that frequently show up in legal cases, including the following:
Whistleblowers speak out against employers for breaking laws or regulations.
The Whistleblower Protection Act (WPA) protects employees who believe their superiors:
- violated a law or regulation
- illegally mismanaged employees
- illegally mismanaged funds
- abused their authority
- posed a danger to public safety
The Federal Labor Standards Act (FLSA) protects American workers from unpaid wage or overtime complaints. It’s illegal for the employer to retaliate against an employee due to a dispute, or formal claim, about overtime or minimum wage.
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.
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 or unemployment. However, the type of retaliation also varies, so it’s likely best to consult with an attorney.
Harassment Or Discrimination Claims
It’s illegal for employers to retaliate against employees who file a claim about harassment or discrimination. These claims are wide-ranging and can include gender discrimination, race discrimination, age discrimination, sexual orientation discrimination, religious discrimination, and many other forms of harassment or discrimination.
What To Do If You Suspect Workplace Retaliation
If you suspect workplace retaliation, your first move is to touch base with a manager, supervisor, or human resources representative about what you think is going on. In some cases, your employer may be acting within reason, and their actions have nothing to do with your complaint.
However, if your employer doesn’t supply a reasonable answer, denies the claim, avoids speaking with you altogether, or refuses to correct the problem or admit wrongdoing, then you can contact your state’s employment agency, file a complaint with the EEOC, or consult with an attorney.
How An Attorney Can Help Your Employer/Workplace Retaliation Case
Even if you file a complaint with the EEOC, you may still want to hire an attorney. While the EEOC will evaluate your case, it can be time-consuming and there’s no guarantee they’ll pursue your claim. An attorney, however, will investigate your claim and pool their resources into the alleged workplace retaliation.
An employment attorney will take a look at the different elements of your case. They’ll likely review the evidence of retaliation, the harm or loss it caused you, and your credibility as a witness should the case go to trial.
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. This is why it’s crucial to document everything. Think about any messages, visuals, or witnesses who would back up your case.
If you filed a formal complaint with your employer, your attorney will want to see the report, as well as any relevant emails, memos, letters, or anything else you wrote down. If there is a manager or supervisor harassing or retaliating against you, your attorney will need their information as well.
Assessing Your Losses
If you choose to hire an attorney and file a lawsuit against your employer, you’re likely pursuing damages. Damages are financial compensation for any losses you suffered. Your attorney can help you assess your losses, such as receiving lower pay because of a demotion or lost wages because you were fired.
To cover all the angles, your attorney will examine your pay stubs or other documents that show your earnings before your employer retaliated against you. Your attorney will also help you consider whether you’d like to seek damages for any pain and suffering you 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 employer retaliation attorney will evaluate your credibility as a witness, as well as help prepare you for giving potential testimony before a judge or jury. They will also make sure your appearance is presentable and your statements are organized and thoughtful.
How To Prove Employer/Workplace Retaliation In Court
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 refers to participating in a process that opposes discrimination, harrassment, or the way you were treated. To show protected activity in court, there are two types your attorney could pursue, depending on the specifics of your case.
The participation clause protects you from workplace retaliation if you made a charge, assisted, testified, or participated in an investigation, hearing, or legal proceeding. 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.
The opposition clause of protected activity shields you from retaliation for simply opposing any unlawful conduct by your employer. This includes communicating, whether implicitly or explicitly, your stance against your employer’s perceived harrassment, discrimination, or unlawful behavior.
Your opposition must be within reason, and you must have reasonably based your opposition on the belief that your employer’s conduct was unlawful. The opposition clause also protects you from retaliation if you participated in an internal investigation or were a witness during a co-worker’s investigation.
You and your attorney will also have to prove that your employer retaliated with a negative or “materially adverse” action, which means any action that would discourage a reasonable person from participating in protected activity.
Your employer retaliation attorney must prove that there was a causal connection between your protected activity and the negative action of your employer. In other words, there must be a connection between the measures you took and how your employer retaliated. 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 occured 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.
To win a settlement or lawsuit against your employer, you won’t have to necessarily prove all three elements. 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.
Workplace Retaliation Attorneys Serving The U.S.
At Florin|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
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 and file a lawsuit on your behalf. We offer a free case evaluation 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 offices today.