Understanding Workplace Retaliation

You have a great co-worker, but you suspect your boss isn’t treating them fairly because of their religion or the color of their skin. You file a complaint, hoping it’ll help. Soon after, your boss lets you go for “poor performance” even though you’re a stellar employee. That’s workplace retaliation in a nutshell.

Understanding workplace retaliation can be difficult because it’s such a complex topic. Below, we explain everything you need to know if you suspect your employer is guilty of workplace retaliation.

Workplace Retaliation Definition

Workplace retaliation occurs when an employer performs an adverse action because an employee either:

• Participated in a protected activity
• Refused to obey an illegal request

What Are Protected Activities?

Protected activities largely have something to do with discrimination. There are too many protected activities to list them all here, but some examples include:

• Filing a discrimination complaint with the Equal Employment Opportunity Commission (EEOC)
• Filing a discrimination lawsuit
• Assisting in an EEOC investigation
• Witnessing an EEOC charge, lawsuit, investigation, or proceeding
• Talking with your boss or supervisor about discrimination
• Opposing workplace discrimination (applicable even if your employer is discriminating against someone else)
• Resisting or protecting others from sexual harassment
• Refusing to follow discriminatory orders
• Talking about salaries and wages with your co-workers

What Is Refusal To Obey an Illegal Request?

“Refusal to obey an illegal request” is exactly what it sounds like. If your employer asks you to do something that breaks the law, and they retaliate against you for refusing, you can file a workplace retaliation claim against them.

Some examples include:

• Your employer asks you to fire someone because of their disability
• Your boss asks you to help them embezzle money from the company
• Your boss sexually harasses female co-workers and demands that you join in, too

Recognizing Workplace Retaliation

Workplace retaliation isn’t always easy to recognize. Your employer likely won’t come out and say that they’re punishing you in retaliation for something you’ve done (or haven’t done).

Examples of workplace retaliation can include:

• Firing or demoting you
• Giving you different job responsibilities
• Suddenly changing your shifts
• Giving you fewer hours
• Harassing you
• Threatening you
• Physically attacking you

For example, assume you work in cybersecurity, and it’s your job to protect the company’s servers. After filing a complaint against your boss, they suddenly tell you that you’re moving to the help desk.

Or perhaps your employer always gives you a solid 40 hours per week. One day, without notice or explanation, you’re down to just 15 hours a week. Both of these examples depict workplace retaliation.

Employee Retaliation Rights

Employees enjoy protections from workplace retaliation thanks to the EEOC. This watchdog agency regulates federal laws prohibiting discrimination based on sex, race, age, national origin, and disability status.

The EEOC is a federal agency, which means you’re protected no matter where you live. If you file an EEOC complaint and win your case, your employer will have to provide some type of remedy to you.

Remedies depend on your specific case. If your employer fired you, they may have to give you back your job. They’ll probably also have to pay back wages you lost while unemployed.

They may have to pay compensatory damages for mental anguish and medical expenses as well. Additionally, the court might order them to pay punitive damages in rare cases.

How Can You Prove Workplace Retaliation?

To prove workplace retaliation, you’ll need some solid evidence. There’s rarely a piece of evidence that directly proves retaliation. Instead, such cases usually rely on circumstantial evidence.

This can include:

• Witness testimonies
• Emails and letters
• Recorded statements
• Performance reviews
• Sudden changes to your schedule
• Prior complaints
• Medical or mental health treatment records

To win your case, you must prove:

• You participated in a protected activity or refused to commit an illegal act for your employer
• Your participation in a protected activity or refusal to commit an illegal act caused the employer to take adverse action against you

Preventing Retaliation at Work

If you’re an employer, understanding workplace retaliation is as important as knowing how to prevent it. A few prevention tips include:

• Know the legal aspects of workplace retaliation. You can’t retaliate against employees for opposing discrimination, filing a discrimination complaint, or participating in a discrimination investigation.
• Establish an open-door policy. Encourage employees to report discriminatory actions to you with no fear of repercussion.
• Do not treat employees any differently if they make a discrimination complaint. Simply act as if the complaint never happened.
• Make sure that employees follow all policies consistently and enforce those policies when necessary.

Need Help Understanding Retaliation in Employment? Contact Kent Pincin

Understanding workplace retaliation can be a challenge for employees and employers alike. If you need advice on workplace retaliation, call a workplace retaliation lawyer at Kent Pincin at (310) 376-0922 to request a free consultation.