Undercover Lawyer is a defense attorney and enjoys helping people learn how to use the law to fight back against a hostile workplace.
Think Your Employer Is Retaliating Against You? It's Important to Know Your Legal Rights
Sometimes it feels like the boss has all the power. It may feel as if your employer and the H.R. department hold all the cards. You're just supposed to come into work, try to avoid the powerful people, and get out the second the work day is over.
But you know what? An employee suffering through a hostile work environment has more power than you imagine. Learn your rights. There are many legal avenues and strategies to protect employees, but few employees know about them. Today, I’m going to reveal one of the most powerful tools available to employees and explain how to use it. It’s the legal claim called retaliation.
What Is a Retaliation Claim?
Retaliation claims are easier to win than hostile work environment claims. Part of the reason is that you don’t have to prove a hostile work environment occurred in order to win on your retaliation claim. Courts have specifically said that an employee can prevail on a retaliation claim by establishing that the employer retaliated against the employee for opposing allegedly discriminatory practices even if the practices were not, in fact, discriminatory.
All that is required to bring a retaliation claim is:
- You complain of a hostile work environment (based on a protected class) that you have a good faith belief is occurring.
- Your boss treats you worse after you make your complaint than he/she did before you made your complaint.
- You complain that you are being retaliated against for lodging your initial complaint.
That's it. The only caveat is that the hostile work environment must be based upon a protected class.
Retaliation Follows a Hostile Work Environment Complaint
You can allege more than one “claim” (or legal theory of how your employer wronged you) in each lawsuit. An easy example is of an elderly woman who sues her former employer for terminating her due to her age and gender. Her lawsuit contains two claims, and she only has to prove one of them to prevail in court.
In a similar way, you can bring a hostile work environment claim and then add a retaliation claim because your boss' treatment of you deteriorated after you filed the hostile environment claim. The retaliation claim is a bit like a caboose full of dynamite that is pulled around by a runaway train called Hostile-Workplace. Even though you can’t have retaliation without first having the hostile workplace, the retaliation is easier to prove, more feared by your ex-employer, and more likely to get you paid.
What Is a Protected Class?
According to federal anti-discrimination law, a protected class is a characteristic of a person which cannot be targeted for discrimination. The following characteristics are considered "protected classes," followed by their corresponding law:
- Race: Civil Rights Act of 1964
- Color: Civil Rights Act of 1964
- Religion: Civil Rights Act of 1964
- National origin: Civil Rights Act of 1964
- Age (40 and over): Age Discrimination in Employment Act of 1967
- Sex: Equal Pay Act of 1963 and Civil Rights Act of 1964 (The Equal Employment Opportunity Commission includes discrimination based on gender presentation and sexual orientation as protected beneath the class of "sex.")
- Pregnancy: Pregnancy Discrimination Act
- Citizenship: Immigration Reform and Control Act
- Familial status: Civil Rights Act of 1968 Title VIII (Housing cannot discriminate for having children, with an exception for senior housing.)
- Disability status: Rehabilitation Act of 1973 and Americans with Disabilities Act of 1990
- Veteran status: Vietnam Era Veterans' Readjustment Assistance Act of 1974 and Uniformed Services Employment and Reemployment Rights Act
- Genetic information: Genetic Information Nondiscrimination Act
What Are Employers Not Allowed to Retaliate Against Employees Over?
When one participates in the EEO complaint process, that person is protected under all circumstances from retaliation by one's employer. Similarly, even if someone does not (or has not yet) participated in the formal complaint process but is still attempting to oppose discrimination, that person is still protected. The critical point is that an employee must have a sincere, reasonable belief that what they reported is unlawful—even if they don't use legal terminology to describe it. Otherwise, retaliation is allowed.
Filing an EEO complaint, however, does not protect an employee from all disciplinary actions. Employers are still legally allowed to discipline or fire workers if the former are motivated solely by non-discriminatory and non-retaliatory reasons, such as for poor job performance.
It's illegal, however, for employers to punish employees (or job applicants) for trying to assert their rights to be free from employment discrimination.
Read More From Toughnickel
According to the U.S. Equal Employment Opportunity Commission, it's unlawful to retaliate against applicants or employees for:
- filing or being a witness in an EEO charge, complaint, investigation, or lawsuit.
- communicating with a supervisor or manager about employment discrimination.
- 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.
How Do You Know If Your Employer Is Retaliating Against You?
It can often be very difficult to tell whether or not your employer is retaliating against you. Subtle changes in attitude or conduct can sometimes be confusing and tough to assess whether or not they count as retaliation.
For instance, if an employer starts acting extra professional and respectful toward you, it may not count as legitimately retaliatory, even if you're confident that he's doing it on purpose and for undesirable reasons. Legally, only changes that you can prove have had an adverse and negative effect on your employment and work environment qualify as retaliatory.
What Actions May Be Considered Workplace Retaliation?
A workplace retaliation can be any action that negatively affects your job, such as a demotion, discipline, salary reduction, or firing. Not all retaliatory acts are overt and easy to identify, however.
Here are some examples of retaliation:
- physically or verbally abusing an employee.
- giving a performance evaluation that is unfair, biased, or otherwise lower than it should be.
- judging an employee harsher than before and with more scrutiny.
- micromanaging every little thing an employee does.
- transferring an employee to a less desirable position.
- threatening to contact various authorities, such as calling the police or reporting on someone's immigration status.
- spreading false rumors about an employee.
- treating a family member negatively, such as ending contracts with a spouse.
- making an employee's work more difficult, such as intentionally changing a work schedule to conflict with family responsibilities or excluding a person from important meetings or information relevant to their job.
Basically, if an employer's action would deter a reasonable person from making a complaint for fear of adverse consequences, it constitutes unlawful retaliation.
What to Do If You Think Your Employer Is Retaliating Against You
If you think your employer is retaliating against you, try talking to your boss or human resources representative. Detail what you suspect is happening, and ask specific questions about how they see it from their perspective. It's very possible that your boss might have a completely understandable explanation for what's going on. For example, sometimes a change in shift occurs for reasons related to other coworkers or other situations you didn't know about. It's also entirely possible that an employer was treating you different without even knowing it, and thus wouldn't realize the difference unless you voice your concern.
But if your employer can't provide a reasonable explanation for the shift in how you're treated at work—or you think that they might be lying—you should tell them that the new negative treatment you've been receiving only started occurring after you explained and demand that it stop immediately.
At this point, if your employer won't admit to any wrongdoing and refuses to correct the problem, it's probably best to take your concerns to the Equal Employment Opportunity Commission (EEOC) or your state's fair employment agency.
How to Build Your Workplace Retaliation Case
In order for your workplace retaliation case to have any chance at succeeding, you will need to prove a link between the filing of your complaint (or other actions that you think triggered the retaliation) and the employer's retaliatory behavior. The more evidence you can compile, the higher the chance of your claim succeeding. You can do this by documenting any behavior you believe to be retaliatory.
Here are some things that would be wise to document and compile, as they can help you win your case:
- Evidence of how you were treated before making your discrimination claim, as well as evidence of how you were treated differently afterwards—ideally complemented with very similar levels of job performance during both times.
- Information pointing to the fact that the disciplinary actions taken against you were not credible.
- Proof that your boss has been angry or hostile toward you.
- Evidence that you were being treated differently than other employees for similar actions.
As an example of the first bullet point, if your employer only started saying that your job performance was poor after you filed your complaint, you'll need to prove that they were pleased with your work beforehand and that your quality of work did not deteriorate.
Why Employers Hate Retaliation Claims
Employers and H.R. departments hate retaliation claims because even though there is a proven pattern of companies going to court against employees and prevailing against the employees' charges of illegal discrimination and harassment, juries tend to find that the supervisors did, in fact, commit retaliation—in the very same lawsuit. That’s what drives employers crazy.
Companies will spend a ton of time and hundreds of thousands of dollars to defend an employment lawsuit alleging, for example, age discrimination. After all the effort, hours, and dollars, the company may prove that it did not discriminate against the employee on the basis of age. Yet, the company may likely leave the courthouse a loser and have to write a big fat check to the former employee. Why? Because the former employee claimed both discrimination and retaliation. Since the employee won the retaliation claim, it really doesn’t matter much that they lost the discrimination claim. The employee gets still paid, and the employer's reputation will likely suffer as a result of losing the case.
This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.
Kcb on August 09, 2020:
I messed up I started dating my assistant then was told by a member of my management team that it was against company policy so I stopped doing it but I had lied prior to HR about it because I was afraid to lose my job well in the end somebody recorded me without me without my knowledge and the company I work for terminated me
GEM on July 25, 2020:
How many years does one have to file a retaliation claim? Can one do this if they already filed a workplace bullying claim and lost - also agreed not to file again? Due to workplace bullying, I have suffered greatly emotionally and physically. I am now on disability suggested by Job Service and my Psychiatrist (I never would have expected this).
Brain on June 04, 2020:
For 7 years I was victimise for the super of the building. The attorney of the Board of the Building. For the Manager of the company. And the super and the delegate of the union member. They use the word insubordination . 2 temination in 7 years and 4 suspension. They want to damage my dignity. 4 strokes of heart. In the second stroke the super do not call 911. I was in the basement of the building alone with not cpr. No 911. No ems. After i try and try . At front of my home door. My family find my self and take me to emergency room. I was almost death and they save me in the hospital. They never paid me any money . Met life. For disability. Union disability. And no anything. After 2 another stroke and saving my life . I was 22 years work in the company and after many years at the end i do not find justice. Only peace
Yesha on October 22, 2019:
I work in school and one of my co worker show me an appropriate video that make me uncomfortable and he ask me if size matter to me.
I told my boss and I feel they didn’t done nothing. What can I do? Can I file case ?
JoyK on October 01, 2019:
Went to a temp sevice for sit down assembly. Said i didnt qualify i might fall on property and theyd be liable. I limp a little im 65 but am disable. Went to job because cant stand not many sit down around. She wouldnt evan give me a chance. Im a risk. Cried all the way home. Felt useless. Need to fight for all who are useless to employers. So wrong. Im also 65. Would appreciate some help.
Brandon on September 01, 2019:
Iv always had back problems and this the past couple weeks it’s been getting to me but Tuesday I got sent home and told not to come back till I had a dr consent saying i could return to work
confidential on July 26, 2019:
I have always had high reviews - worked 60 plus hours a week, had the most difficult clients and a lot of respect within the company. My boss has the other manager taking over everything that I touch, say and do - I have been in the industry for years. I am embarrased - totally depressed and a wreck! She is playing games and it is obvious to all what she is doing. I am up in age and maybe she is pushing me out the door - I want to be comfortable and not afraid to do my job because of the embarrassment that she will say that this other manager needs to have feed back. What do I do?
LauraBeth Culbert on June 01, 2019:
I quit a job due to child abuses I witnessed on it. Next day, employer calls me and says she received emails defaming me and that could cause it that I never work with children again. I refused to come in to the office to view the emails but told her to forward them to me. She refused. Can I require her to send the emails to me?
dcirrito on April 28, 2019:
I have been at my job for 11 years and I have had 3 managers. This last one is a micro-manager and he is not good with women.
My reviews were always above average on about 75% and 24% average with an occasional excellent but last year I applied for a better position in my company and did not receive it for reasons I believe are acceptable but HR lied to me and said it was my negativity which only occurred when they asked me about my current job. My boss has been a bully. He has a nasty reputation and carried it over from a previous branch in a different state. I've caught him several times hiding in a corner and watching me or struggling to see what was I was doing (which was my job)
Last year I told HR about how he was bullying me and that I have a disability which they brought up when they saw me struggling with the stairs, They said there is nothing they can do about the stairs or to move me. (there are only 6 of us that work up the small set of stairs and the other 90+ people work on the regular floor.) A couple of months ago, I was given the worst review I have ever had and I was written up for a load of issues that I told them I could prove were false. They didn't care. I have bent over backwards to appear less "negative" with my boss. But I fear that they will still fire me when that 6 month write up is done because very soon I may not be able to walk and they will have to spend considerable money to change the building for a handicapped female. They had it for a man that was in a wheelchair and sat on the lower floor.
Lin on April 20, 2019:
I am very interested to also speak to a lawyer I have a retaliation and harassment at work and due to high stressed my boss has to call 911 I been a recognized employee most of the time but doesn’t stop my boss demoting ma and hr never in the employees side .i filed case at eeoc and now in investigation enforcement unit 3rd step . I would like to hire lawyer
Nlmg on March 27, 2019:
Is there a way to speak with the lawyer who wrote this article?? I have sensitive information and would rather not post publicly
Rae Neal on March 26, 2019:
I have filed with the EEOC I am waiting to hear back from them. I was told during my interview to seek an attorney for a wrongful termination / Retaliation lawsuit. and feel I have been retaliated against for reporting to HR about harrasment from another employee as well as not being paid properly. After I made this complaint my Executive Director refused to do anything about the harrasment, refused to let me transfers to another facility, made threatening remarks to fire me. During the time I was there I was denied a workers comp issue, and had to be put on anxiety medication for sever anxiety and depression. My Executive Director made remarks about how I was not qualified for the job I had been hired for, and she hired a man stating he was more qualified. Before I quit due to the amount of stress and anxiety and having my hours had been drastically cut from 40 to 8 hours a week. Feeling that I could not support myself my husband or my son with these decreased hours and being told I had no other options in this company. I also feel my employer is slandering my name. I've been without work since October 2018 and have not had a single job offer, I feel that my executive director is saying bad things about me to other companies so I am unable to get employment. I have documentation for these actions, and I feel I have proof that I wasn't paid properly on my final paycheck. I has witnesses to back up my situation, my husband as well as a former coworker.
Bill Hammer on March 18, 2019:
I recently had a stroke about a month ago. I asked for ADA acomidations for 2-3 weeks of half days to make sure I was ready to come back to work, not only for me but also the company. If everything went good then back to normal if not then something else. The doctors also thought this was a good idea and but it on the release forms. The company has only one employee working per shift. I know because I've done many shifts there. I've been told by HR that the store mamagers don't like the half day accomindation and would only do an 8 hr. accomindation. The reasoning was that the store only has one employee per shift. My question was when anyone is trained two employees are there together, why was this any different. Is this not a reasonable accomidation request or am I out to lunch?
Stararur on March 15, 2019:
I work at a place at packing house where I was watching the Hispanics Force and gang up on the whites and blacks to take over the company APUSH. 2 CEO nominated their own it pushed out the plant manager nominate their own in the families of these people you are also getting positions of power in they're using it to belittle key phrases from being paid to employees who earned it and they're giving your family members dollar into our raises and they keep giving all of us whites and blacks and Indians right of every day saying that because we come at work are we calling that was supposed to be on time it would be wise we can be fired without a cause. My brother get a job at the place called greater packing plant he is a certified level six production maintenance mechanic whose work on Firefox injectors and of Esau's pneumatics schematics hydraulic line hook ups for bigger operations and he signed up to be a maintenance worker 2 Riser and they said they didn't have any interest because it position was already full 2 weeks later they hired six Hispanics he had no experience at all if it my brother in real life in a corner away from other Americans don't throw stuff they just hit him in the head with a bone with physically assaulted him in front of the my brother is a homosexual who only dates homosexual men so not really has he gone to that he's been assaulted push into a wall and knocked on the floor in the bathroom he reported it to the plant manager who said this is a no tolerance policy for discrimination we will we will take care of this immediately they moved my brother off that line and they said the reason they didn't fire the rest of it because they've been there so long it would be pointless to lose all them just for him and so harassment kept going and is it right to order my brother to get up there where all the Singapore's jumped off the line and we'll rebelling near all Hispanic they denied him the ability saying that they didn't have enough people staff too hotty have people stop enough to train every single Hispanic just came in in the last 3 years when you didn't have one day to train my brother who is an American citizen and a felon but I rehabilitated felon who is nonviolent train level 6 mechanic NFL game on tonight they write him up constantly put them on the list jobs because I don't want to pay a clean that's going to be filed against them is he able to follow that we're playing for good how we did because I understand correctly he told me that the cops and he was in prison with all around in a gang and give themselves a name for people that associate missiles by cells Paisano's that is also a gang in the independence centuries so when they thought under the RICO Act which is a violation of the Constitution that you are acting as an organized gang what can you do please help us Omaha Nebraska
Sd on February 14, 2019:
My GM had me hire her husband (she said she didnt know him it was just a guy looking for a job.) When this person did not perform well and i emailed her knowing she put me on performance improvemnt plan, when I informed they the statements in the performance plan were flase and i provided documentation she had me transfered to a different hotel knowing the hotel was in the process of being sold. The company also knew her hisband was working at her property after i sent a letter they transfered him to another hotel.
Nonya on January 31, 2019:
These companies will continue as ususal.. B\C if your not in a protected class or even if you are they will say it didnt happen and continue the work abuse as ususal with you there or if you decide to quit. They will find that loop hole and always say you are the crazy one. We need to make laws that protect everyone and pull these rats out of there holes. They are the ones hiding behind rules made for only them to benifit from.
THolmes31 on January 10, 2019:
When I started a new job a coworker asked for my number he asked if I was married or if I had a boyfriend which I told him I did not . He then proceeded to tell me that he did not have a spouse or girlfriend . I work in a different department than his coworker , we texted about hanging out but we never did . Do you months later I was moved into the same coworkers department of which she oversees and is manager After an interview I was switched to his department . A month later I learned he is not only married but his wife is pregnant as well as another child . After finding this out I did not respond to any of his text messages or have any small chitchat in the halls can you text me almost every day and comments on my appearance, asking me about my day and keeps wanting to know about why we never hung out and even texted me to say ,”hey” after I respond with yes his text literally says Word for Word , “ this is not work related “ which I did not respond. I was told in the interview that I would receive 25 to 30 hours a week and for the first month I did . I called in One day I was scheduled to work because my daughter was sick . He Took me off the schedule for the rest of the week my hours have been you literally zero and Demoted to a PRN basis . Any advice????
Cristina P on November 13, 2018:
I work in a nursing home f 23 years. The past 4 years ive been sexuality harassed and groped by my boss I was denied my full time back...My boss asked f sex in return of my full time back....I almost lost my car. My cell phone almost on the streets..WHEN THE NEW administrator Come along and a new H.R i though can get help...But when i aproched the administrater and asked him aboout a meeting and discuss about my boss he denied my meeting. And told me whereawee it is hes going to back my boss up not me....Not long after that the same administrator ask me f my celll nr wanting to hang out w me to the gym.. how beautiful i am..After that the.H.R.a good friend if hes she fid everything possible to get me FIRERD so i wont be a problem f my boss the administrator.and the facility .3 years off hell fighting the 3 of them
MY boss the H R.and the administrator..I come foward about my boss to the same people who tried to firer me all along THE ADMNISTRATOR AND HR...THE FIRED MY BOSS BUT THE 2 OFF THEM. STILL WORKING...HR GOT A PROMOTION. WHERE IS MY JUSTICE? ???
Mary Shiflett on October 20, 2018:
I dont work here no more but i hurt my shoulder when i was working there last year told my manager 3 different times i hurt my shoulder he never filed a claim shoulder will hurt on and off would work with it hurting and he would ask whats wrong and would tell him again when i hurt it but never did anything about it what should i do about it
Stephanie on September 25, 2018:
I informed my manager 3 weeks ago, I plan on having surgery next week. Last week a co worker was a no call no show, 2 days. Both days I was accused of not showing up for my shift, was yelled at, and belittled. Just to prove I wasnt scheduleed those shifts. We arent allowed to copy or snap pictures of our schedule. I wrote down wrong day for a shift, so was a no call no show. And informed her I had a doctor appointment out of state on another shift. Her phone dont work most the time, so left note at work about it. So its not a no call no show. Was informed of manditory appointment the same day schedule was posted. I was taken off thenschedule for my last week of work. I dont have a job to come back to after a few months off after surgery, and the employee thst was no csll no show 2 times last week still has a job amd gets the most hours out of everyone.
Tawna Richards on September 01, 2018:
I have been at my job for 6 years. The assistant manager got sick. I was the temperary assistant manager and she didn't come back. My boss hired someone else for the manager position. The same thing happen again and she never came back due to illness and again i fill in. After 6 years and assistant manager for 2 years he hires someone else again. He said she was more qualified. What can i do. I was wrongfully not hired and my record is 100% with this job.
lifeinabox808 on August 30, 2018:
so my employer fired me because of discrimination . an employee liked me and was sexual harassing me so i put him on another schedule rather than firing him and he got mad filed a sexual harassment complaint against me and quit . what can i do?
Sara McMullen on August 19, 2018:
My boss is like a bad episode of Jwow from Jersey Shore. Thats literally how she acts. She will call you names and send you crazy texts on your day off, allow certain people to show up 1-4 hours late, gossip, intimidate, retaliate, point blank bi polar,...I do not see how people like that are employed.
Ashley R Huddlest on August 12, 2018:
My boss has cut my hours and another employees hours to give to a guy that quite and came back six months later we work only 2 days and he works 5 when i asked why my hours were cut she told me lifes not fair and its her store she makes up the hours and she dont have to listen when the other employee asked the same question she got all upset and stormed to the back every time one of the employees upsets her she yells and and either storms out the store or to the back of the store i dont know what to do am i just supposed to live with the comment lifes not fair?
Jamie stlouis on August 10, 2018:
Im a shift manager and my boss has a write up for me for supposedly having a bad closing but doesnt notice that other managers dont do a good job but is signaling me for some reason what can i do
EDGARDO BAERGA on August 04, 2018:
I called out sick from,work on,the 28th of july , I went to the hospital , and the doctor excused me for the 28th an the 29th ...an requested that i resume employment on the 30th ...well,i gave the nessesary documents to him and he. Still xidnt follow procedure ..he didnt pay me ....what do i do ???...please help me ????
Mrsiamme on August 02, 2018:
I got written up, and told on my supervisor for the reason of my write up and later that day I was fired. Now after I been fired for 3 days, they withholding my check, this Friday will make it a week they haven't paid me, Is that retaliation ?
PizzaMangrCryING on July 23, 2018:
i need advice. a person i work with has threatened me 2xs now, this time i called police and reported it. my manager will not fire this guy. how can i sue this company for making me work in this environment
william sutter on July 06, 2018:
I got hurt last year and it cost the company money and no one got there bonus July 1 2018 always got my bonus last 20 years
Jessica Nickes on July 04, 2018:
I work for a company who is going through a big EHR transition we brought in consultants to assist and help train our current employees. My partnered consultant lacks communication and talks down to me. When I brought the issue to my manager they basically told me I may lose my job because they dont have time to deal with it. I need to listen and make it work.
Melanie mendez on May 09, 2018:
I have been out on work comp. The area manager does not like me. After my first surgery I retained an attorney. That was when it started. Suddenly I got wrote up twice for thing I did not do. Now in my area we have 3 shifts. We had one open. This manager gave an employee my shift and put me in the open one
Allen on May 06, 2018:
I work for a school district in New Jersey. I was out of work on family medical leave of absence. I have a great work record. Excellent reviews. When I came back to work two weeks later my contract is not being renewed. What are my options at this time
cleesp on April 23, 2018:
I had worked for the state and for two years. A employee who just started was sitting in the break room, I walked in a he yells at me, " you bitch". I did not even know him. I reported this to my manage, and to the union. They did nothing. I was the only female on this crew. After this no one would talk with me, they would meet places during work to break and they would tell me the wrong place.
This is a state job. They don't hire many females in this position, I had more qualifications than my follow employees.No one would work with me or around me, because I said something, I could not stand to be around it any longer. I was the only female on the crew. I resigned they would not doing nothing to help, they asked me to resign because I spoke up.
Chancey Cupps on April 22, 2018:
I. Have severe anxiety and depression, I have poor health, causing me to miss alot of work and I bring doctor note's in every time. I don't want to feel like this. I've been working at my employment for almost. 11 years, I am the only one who didn't get a raise. I'. It fair. Hr don't support me. My boss doesn't. I don't want to lose my job
j. adam on April 20, 2018:
my wife had sex with her boss , i called ,he answed her phone , and made her talk to me . a couple of weeks later she told me she did she filed a rape with police nothing came of it what should i do
Rh on April 15, 2018:<