Retaliation

Retaliation occurs when an employer acts adversely towards an employee who has engaged in a protected activity. Federal discrimination laws prohibit retaliation against individuals who exercise their rights under the Americans with Disabilities Act, the Civil Rights Act, and the Age Discrimination in Employment Act. State discrimination laws offer similar protection against retaliation.

Proving Retaliation

To succeed in a claim for retaliation, an employee or former employee must typically satisfy a three-part test. First, the employee must show that he or she engaged in a protected activity. Second, the employee is required to prove that the employer acted adversely against the employee. Finally, the employee must prove that the protected activity was the cause of the employer's adverse action.

Types of Protected Activities

Generally, an employee engages in a protected activity whenever he or she exercises an individual right. There are a number of activities in which an employee may lawfully engage without being subjected to retaliation. For example, an employee may request a raise, overtime pay, or maternity leave without fear that they will be punished or fired by their employer. Additionally, an employee is entitled to complain of discrimination or harassment within the workplace, so long as the complaint is based on a reasonable belief that the employer's conduct violates an anti-discrimination or anti-harassment law. The employee may be the victim of the discrimination or harassment, or may oppose the behavior on behalf of a fellow employee. An employee is entitled to refuse to obey a discriminatory order, report the behavior to a federal or state agency, threaten to file a charge of discrimination, and participate in an employment discrimination proceeding.

Types of Retaliation

An employer is prohibited from taking any adverse action against an employee for participating in a protected activity. Adverse actions are defined as any actions taken with the intent to punish the employee for their participation in a protected activity. Adverse actions include the following:

• Firing the employee.
• Refusing to promote the employee.
• Giving the employee a negative evaluation or reference.
• Changing the employee's shift or working conditions.
• Preventing the employee from filing a claim against the employer.
• Threatening to do any of the above.

Retaliation may be subtle and the retaliation need not be intentional, so long it negatively impacts the employee.

Protected activities must be distinguished from those activities that warrant discipline or termination of employment. An employer may lawfully fire or discipline an employee for any legitimate reason. Legitimate reasons include under-performance or participation in unlawful or violent activities.

Proving Causation

Even if an adverse action follows a complaint for harassment or discrimination, a judgment for retaliation will not be granted unless the adverse action was taken in response to the complaint. If the employer has a legitimate, well-documented reason for taking the adverse action, the employee's claim will fail.

Remedies for Retaliation

Victims of retaliation may sue their employers for economic, emotional, and punitive damages. An employee may be successful in a retaliation claim even if they lose the underlying harassment or discrimination claim.