Retaliation Against Employees for Exercising Legal Rights

Retaliation happens when an employer punishes an employee because he or she engages in a legally protected activity. All of the federal anti-discrimination laws enforced by the Equal Employment Opportunity Commission (EEOC) prohibit retaliation, as does the False Claims Act.

With regard to discrimination, retaliation occurs when an employer punishes a job applicant or employee because he or she:

• Files a charge of discrimination or harassment based on specified protected categories;
• Complains to the employer or another covered entity about discrimination or harassment based on specified protected categories; or
• Participates in an investigation or lawsuit related to employment discrimination, even if the proceeding relates to a different employee.

The laws that prohibit employer retaliation include the Americans with Disabilities Act (ADA), Title VII, and the Equal Pay Act.

What Actions Are Considered Unlawful Retaliation?

Retaliatory actions may be any negative action taken with regard to employment. This includes demotions, terminations, discipline, reductions in salary or benefits, or transfers to less prestigious positions. For example, if an employee is a whistleblower who files a qui tam lawsuit and they are immediately demoted to a lower-paying position, this is probably retaliation.

There are also more subtle forms of retaliation that require examination of the total circumstances of employment. Suppose for example, an employer knows an employee has small children and less flexibility to work late into the evening. The employee asks for leave to take care of their husband, who has cancer, under the Family and Medical Leave Act. Their supervisor is reluctant to give them the time off. When they return, their supervisor changes their work schedule so that they have to work later shifts. If the supervisor seems to be trying to force them to quit by giving them work shifts that they cannot take, the employee may have a legitimate claim of retaliation. Generally, any adverse action that would deter a reasonable employee or applicant from making a complaint counts as illegal retaliation.

Importantly, employees are protected from retaliation even if their claim of discrimination or harassment is unfounded, as long as they, in good faith, believe it to be true. Suppose, for example, an employee is the only Middle Eastern employee at work. If their coworkers and supervisor make rude comments linking Islam and terrorism, and they are routinely passed over for a promotion, they might believe that they are being discriminated against in violation of Title VII for their national origin, race, or color. When they make a complaint to Human Resources, it may turn out they were actually passed over for promotions because they do not have as much management experience as the employees who were promoted, rather than for any discriminatory reason. In this situation, even though the employee was wrong, they may still be protected from retaliation. If the employer gets very angry at being accused of discrimination and demotes the employee, they can still make a claim for retaliation because they had a good-faith belief in the discrimination.

If an employee suspects that their employer has retaliated against them, they will need to show a link between the action that they believe caused the retaliation and the retaliatory behavior. They will need to document the retaliatory behavior and save any documentation of the complaint. They will also want to have evidence that their boss was happy with their job performance before they complained.

Last reviewed October 2024