What Is Workplace Retaliation? (and Why Are Employers so Afraid of it?)
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. Sias v. City Demonstration Agency, 588 F2d 692, 692 (9th Cir 1978).
All that is required to bring a retaliation claim is this:
- 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.
Definition of "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:"
- 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
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 one iota that they lost the discrimination claim. The employee gets paid. How is it possible to both lose and win the same suit?
Retaliation Follows a Hostile Work Environment Compliant
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's 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 run-away train called Hostile-Workplace. Even though you can’t have retaliation without first having the hostile-workplace, the retaliation is easier to prove, is more feared by your ex-employer, and more likely to get you paid.
Here’s why retaliation claims are so hard for employers to stop: Imagine that you were at work and another employee accuses you of something truly horrible, like race discrimination.
You’re shocked! Anyone who knows you at all will say that you would never hold a person’s race against them. You are no bigot! And the co-worker’s accusation doesn't twist your words, it puts words in your mouth that you never said.
So, after you learn that this co-worker is falsely accusing you of racial bigotry, do treat her exactly the same way you did before she (falsely) accused you? Could you resist confronting her about it? Could you be friendly and talk to her just as frequently as you did before? Could you include her in meetings and group lunches just like you did before? Could you resist making even the smallest negative comment about her to your other co-workers?
In all honesty, I would have a very tough time doing that. Your supervisor is no different. Even if everyone knows that your boss is a mean-spirited jerk, he doesn’t believe that he is a mean-spirited jerk. He believes in his heart of hearts that he is innocent. As a consequence, he can't resist the very human urge to defend himself, to attack his accuser, and “fight for” his career. He will always retaliate.