What Is Workplace Retaliation? And Why Are Employers So Afraid of It?
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 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' 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.
Retaliation Claims Can Prevail, Even When Discrimination Claims Don't
Even if the court finds that an employer's practices were not actually discriminatory, an employee can still win a retaliation claim if they can prove that an employer retaliated against them after the initial discrimination complaint was filed.
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.
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.
Job Performance Still Matters
Though it's illegal for employers to punish employees for trying to assert their rights to be free from discrimination, employers can still punish or fire workers for non-discriminatory and non-retaliatory reasons, such as poor job performance. So if you want a better chance of winning your case, it's important to continue to provide quality work at your job.
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.
Your retaliation claim will have the best chances of succeeding if you document any and all actions you believe to be retaliatory. Everything from your employer lashing out at you to evidence of your continued high level of job performance can help you win your case.
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.