What is retaliation?

For employees who believe they are being harassed or discriminated against in the workplace, it can be difficult to come forward and report these issues out of fear of retaliation. Workplace retaliation occurs when an employer or supervisor punishes an individual for engaging in a protected activity (i.e. reporting a legal violation or requesting legal protection).

Workplace retaliation can be presented in many forms including wage retaliation, discrimination and/or sexual harassment retaliation, and accommodations and/or leave retaliation. State and federal laws (i.e. Title VII and the American Disabilities Act) not only prohibit these actions but also prohibit employers from retaliating against employees who report such conduct. Similarly, these laws prohibit an employer from retaliating against an employee who requests protection that they are entitled to by law including reasonable accommodations, parental leave, or medical leaves of absence.

In order to prove retaliation an employee must be able to show three things:

  • The employee engaged in a protected activity
  • The employer took negative action against the employee
  • There is a causal link between the employee’s activity and the employer’s action

In this blog, we’ll dive deeper into what these three mean, how you can prove them, and what to do if you believe you’re being retaliated against.

Protected activity

As mentioned above, protected activity, in general, is reporting a legal violation or requesting legal protection. There are two types of protected activity: opposition and participation. Opposition is when an employee directly informs someone (like a supervisor or Human Resources) of a legal violation, files a claim or report, or requests legal protection. Participation, on the other hand, is when an employee participates in an investigation of a discrimination or harassment claim or serves as a witness.

According to the U.S. Equal Employment Opportunity Commission (EEOC), these protected activities include:

  • 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
  • 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.

All of these listed activities are protected against retaliation as long as the manner of opposition or participation is done in good faith.

Negative Action

To prove retaliation, you must not only prove that you were engaged in protected activity, but also that you experienced some sort of action that was materially adverse following the engagement. According to the EEOC, this means any action that could deter a person from engaging in the protected activity. These actions don’t necessarily have to be related to the workplace but can be non-work-related as well.

Examples of materially adverse reactions, both work-related and non-work-related include (but are not limited to):

  • Demotion
  • Negative evaluations
  • Decrease in wages
  • Denial of benefits
  • Suspension or termination
  • Verbal abuse
  • Making false reports to the government
  • Disparaging the person to others or publicly in the media

Proving that you engaged in a protected activity and proving that you experienced a negative reaction will not hold in a retaliation claim if you can’t prove a link between the two. In order for the claims to be considered retaliation, there must be a causal link between the employee’s activity and the employer’s action (in other words, the employer took action against the employee because of the protected activity).

For example, if an employee proves that he or she was engaged in a protected activity and was then put demoted due to a history of negative evaluations and declining work performance, it would be difficult to prove that he or she was laid off because of the protected activity engagement. So, how can you prove causation?

    • Timing: The timing of events is a critical factor. If the adverse action occurred very shortly after the protected activity, retaliation is often suspected.
    • Statements: Whether orally or written, a statement made by the employee to their boss, supervisor, or Human Resources can help prove that a legal violation was reported and retaliation was intended.
  • Comparative evidence: If a similar situation occurred with another employee but that employee did not engage in a protected activity and was treated favorably or differently, it could infer a retaliatory motive.
  • Inconsistent explanations: If an employer’s reasoning for the adverse reaction doesn’t make sense, is inconsistent, or is changing, it may look suspect.

What can you do if you believe you’re being retaliated against?

If you recently engaged in protected activity and experienced an adverse reaction, be sure to document everything. As mentioned, you’ll need proof not only of engagement in protected activity and negative action, but also a correlation between the two. Documenting proof that you filed a complaint or saving former pay stubs can assist in proving causation in your retaliation claim.

Read more: Workplace Retaliation: Five Answers to Common Questions

Greene & Hafer attorneys are experienced in workplace retaliation law and are ready to stand with you and fight for your rights. Call us today to schedule a consultation.