Workplace Retaliation: Everything You Need to Know
Workplace retaliation is any action an employer takes against an employee as punishment for filing a discrimination or harassment complaint.3 min read
2. Workplace Retaliation: What Are Your Rights?
3. When Is Retaliation Prohibited?
4. How Do You Know If Your Employer Is Retaliating Against You?
5. What to Do If You Suspect Retaliation
6. Building a Case of Retaliation
7. Unintentional Retaliation
8. Preventing Workplace Retaliation
Updated June 25, 2020:
What Is Workplace Retaliation?
Workplace retaliation is any action an employer takes against an employee as punishment for filing a discrimination or harassment complaint. Examples of retaliation include demoting, giving poor evaluations, disciplining, reassigning, reducing pay, or even firing an employee.
Workplace Retaliation: What Are Your Rights?
It is well-known that employees are protected from harassment and discrimination by law, but not everyone knows that employee protection laws also apply to workplace retaliation. In other words, employers are not legally allowed to punish employees for making complaints about harassment or discrimination, or for taking part in any workplace investigations.
If an employee files a groundless or falsified complaint of harassment or discrimination, the employer could still be culpable if they take any action that could be seen as a punishment.
When Is Retaliation Prohibited?
Federal law protects employees from retaliation when:
- They complain internally or to an outside agency about workplace harassment or discrimination.
- They cooperate in Equal Employment Opportunity Commission (EEOC) investigations or serve as witnesses for EEOC investigations or litigation.
- They ask for a reasonable accommodation for a disability under the Americans with Disabilities Act (ADA).
- They apply for medical leave under the Family and Medical Leave Act (FMLA).
Protection against retaliation also applies to anyone who is interviewed about a complaint or participates in an investigation that arose from a complaint.
How Do You Know If Your Employer Is Retaliating Against You?
If you make a complaint and your employer takes any form of negative action against you shortly thereafter, chances are good that the action would be considered retaliation.
Sometimes these negative actions are not as obvious as being demoted or fired. Some examples of more subtle retaliation include suddenly being excluded from staff meetings or having your supervisor start to micro-manage your projects.
What to Do If You Suspect Retaliation
If you have reason to believe you are the subject of workplace retaliation, you should immediately talk to your boss or someone in the human resources department because there could be a legitimate reason for the negative action.
If your employer can't provide you with a solid and verifiable explanation, you should let them know that you feel you are a victim of retaliation.
You might have to report your concerns to the Equal Employment Opportunity Commission (EEOC) or your state's fair employment agency if your employer won't admit any wrongdoing or won't reverse the negative action they took.
Building a Case of Retaliation
To build a case of workplace retaliation, you will have to demonstrate that the employer's act of retaliation was a result of your complaint.
The best way to demonstrate your case is to keep a written record of what the retaliatory action was as well as any pertinent historical events that occurred before you filed your complaint.
An employer should be aware of and avoid unintentional retaliation. An example of unintentional retaliation is when an employee files a harassment complaint against a supervisor who tells inappropriate, sexist jokes, and the employer moves the employee to a different department thinking it will be helpful to the employee not to have to work with the alleged harasser while the complaint is investigated.
The employee might view his or her move to a different department as a negative action in response to the harassment complaint. In this case, the employer would be liable for workplace retaliation.
Preventing Workplace Retaliation
The first step an employer should take to prevent workplace retaliation is to have a policy against it that clearly explains what workplace retaliation is. The policy should include a step-by-step process for reporting and investigating complaints.
No matter how trivial a complaint may seem, employers should take them all seriously and perform a comprehensive investigation.
It is also important for the employer to focus on the alleged wrongdoer and not the employee who complained, and if the complaint is valid, the situation that caused it should be corrected immediately.
Lastly, make it clear to employees that their career opportunities will not be affected if they file a complaint, and that all complaints will be kept confidential.
If you need help with workplace retaliation, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.