1. What is the difference between retaliation and unlawful retaliation?
Many people are surprised to learn that every form of retaliation in the workplace is not actionable. In its most general terms, unlawful retaliation occurs when an employer punishes an employee for engaging in “legally protected activity” or “opposing unlawful conduct.” While this language covers a broad array of conduct, it does not cover every kind of retaliatory conduct. As an employee, it is important to learn whether the conduct that you have engaged in is “legally protected” or is in opposition to “unlawful conduct” before levying a claim of unlawful retaliation against an employer.
More specifically, you must show three things in order to sustain an unlawful retaliation claim:
- You have engaged in “protected activity”
- You have suffered an “adverse action” by your employer
- There is a “causal connection” between the protected activity and the adverse action
2. OK, so what is legally protected conduct?
Federal and state laws that define and protected activity are constantly changing and evolving. While it is always best to seek legal advice from an experienced employment attorney, as a general rule, the law protects employees who make complaints – either internally or to an outside body – about workplace discrimination, harassment, and wage and/or hour law violations – as long as it is done in good faith. The law also protects employees who participate or cooperate in internal or formal external investigations or proceedings. The law also protects employees who oppose practices that are unlawful or that the employee reasonably and in good faith perceives to be unlawful.
3. What types of actions will not constitute legally protected conduct?
There are many types of conduct that is not “legally protected.” One common example is an employee’s report of generic mistreatment by a co-worker or supervisor. For example, a complaint that a co-worker is receiving preferential treatment because he/she is friends with the boss generally will not qualify as “legally protected conduct.” This area of the law is commonly misunderstood and is best discussed with an experienced employment attorney.
4. What constitutes adverse action?
An adverse action can be any type of negative job action. Demotion, discipline, firing, salary reduction, job or shift reassignment, refusal to hire, are all examples of negative job actions that can constitute retaliation. In addition, other less tangible changes to working conditions can, in some instances, amount to an adverse action.
5. How do I know if there is a “causal connection” between the protected activity and the adverse action?
At a minimum, in order to establish the necessary causal connection, you must be able to show that the person who engaged in the retaliation knew of your protected activity. This can be proven through either direct or circumstantial evidence. In some circumstances, it will be enough to show that the protected activity occurred close in time to the retaliation.
