Retaliatory discharge alludes to a business firing an employee for something other than a work-related reason, i.e. job performance. For example, if an employee complaints about harassment or discrimination, the employer cannot take an action against the employee. Unfortunately, retaliation in the workplace does in fact happen. According to the Equal Employment Opportunity Commission (“EEOC”), more than one third of discrimination charges filed with the EEOC in the past couple of years have included a claim of retaliation. Keep in mind that there are elements that you must prove in order to be successful in court for a claim of retaliation.

Which Laws Protect Employees from Retaliation?          

A lot of laws provide that retaliating is illegal; this includes Title VII of the Civil Rights Act; the Age Discrimination in Employment Act; the Americans with Disabilities Act; the Equal Pay Act; the Occupational Safety and Health Act, and the Fair Labor Standards Act. All four (4) laws are upheld by the EEOC.

Proving Workplace Retaliation       

  • You must prove that you engaged in a protected activity
  • That your employer took against you
  • That there is a causal link between your activity and the employer’s action after the fact

When going through these elements, make sure you understand the details of each one. First, the activity must be protected. This will be explained below. Second, the action must have been taken by the employer against you. What kind of action was it? Were you terminated? Were you demoted? Bullied? Overlooked for a promotion that you are otherwise qualified for and were certain to have achieved before you engaged in the protected activity? Lastly, there must be a causal link between that activity and the action the employer took against you. This is the hardest element to prove. Most employers who face such lawsuits will claim that the termination was for a legitimate reason, and that the employee’s work performance was suffering.

Element 1: What Is Protected Activity?    

Your manager cannot retaliate against you for any reason. If your manager asks you to engage in illicit activity or provides an unsafe working environment, he cannot force you to do so. That is when you will want HR to step in to handle the matter. However, if you are terminated due to insignificant job performance or some other legitimate work-related matter, then you are not protected. Another protected activity is if you previously or are currently taking part in some sort of employer examination or hearing. For example, assume that OSHA is conducting a routine site visit and finds some safety issues in the workplace. If the OSH representative calls you in, and asks you some questions regarding workplace safety, you are free to communicate your issues to them. Even if your manager finds out what you said, he or she cannot retaliate against you for providing such information.

Element 2: What Kind of Action Must Be Taken by Employer

Any action that is materially adverse to the employee would constitute a negative action under the law. Most employers will know if the action taken is materially adverse to the employee, particularly if it involves termination, demotion, negative performance evaluations for no reason, change in job duties, salary reduction, or some form of bullying in the workplace against the employee who engaged in the protected activity. Unfortunately, this does in fact happen. And if it does, the employee should immediately consult the law and create his or her case, documenting and ensuring that there is a proper timeline in place for what happened and when. It is also important for you, as an employee, to print and save any e-mail communications that prove such negative actions taken against you.

Element 3: Causal Link Between Protected Activity and Negative Action Taken

This may be the hardest element to prove. An employee must prove that the protected activity caused the negative action taken on the part of the employer. Specifically, it is not enough for you to prove that you engaged in protected activity and were subjected to a negative action; you must prove that those two were related. For example, let’s say you advise your HR department that you were harassed by a colleague. Almost immediately thereafter, you were laid off due to ‘cost cutting’ measures, along with the rest of your team. There is no causal link here. In fact, this decision was probably already in the pipeline for months before you knew about it. Not to mention the rest of your team was also laid off. Therefore, you will not have a claim for retaliation. However, let’s assume that you file your complaint with your manager. You advise your manager that you are going to communicate your complaint to the HR department.

Now, let’s assume that your manager responds by saying: “If you go to HR, you will not be promoted as we discussed before.” There is clearly a causal link between the protected action and the negative action taken by your manager. However, there are also other elements that you must generally prove in order to establish the causal link. They include:

  • Timing of each action. This is a very easy way to prove retaliation. If the negative action taken by your employer was almost immediately after your protected action, then this looks a lot like retaliation. Again, keep in mind the circumstances. As previously noted, if you are laid off along with the rest of your team, this proves that the action taken by your employer had nothing to do with your protected action.
  • Employer’s knowledge. The employer must know that what it is doing constitutes retaliation. The employer must also know about the protected action that you engaged in. Therefore, if the employer terminated an employee due to job performance, but the employee truly believes it is retaliation for a protected action, then an additional investigation will need to take place. If the employer can prove that the employee’s job performance was diminishing, then the employee will not have a case. It may just be a coincidence that the employee engaged in a protected action immediately before the employer planned on terminating the employee.

If You Are Facing Retaliation          

If you have been terminated for lodging a formal complaint against your employer, or you were asked to engage in illicit behavior by your employer, your employer cannot legally retaliate against you. However, if you are in fact facing retaliation, it may help to speak to a qualified lawyer who can assist you.  It is important for you to understand your rights and responsibilities when it comes to retaliatory discharge. Even if you have already been terminated, it is important to follow up with an attorney as you may have a right to sue your former employer.           

If you need assistance with laws regarding retaliatory discharge, you can post your legal need on UpCounsel’s marketplace. UpCounsel receives merely the top 5 percent of attorneys to its site. Attorneys on UpCounsel come from law schools all over the nation.