Retaliation

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 are 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 you are a whistleblower who files a qui tam lawsuit and you 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, your employer knows you have small children and less flexibility to work late into the evening. You ask for leave to take care of your husband, who has cancer, under the Family and Medical Leave Act. Your supervisor is reluctant to give you the time off.  When you return, your supervisor changes your work schedule so that you have to work later shifts. If he or she seems to be trying to force you to quit by giving you work shifts that you cannot take, you 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, you are protected from retaliation even if your claim of discrimination or harassment was unfounded, as long as you in good faith believed it to be true. Suppose, for example, you are the only Middle Eastern employee at work. If your coworkers and supervisor make rude comments linking Islam and terrorism, and you are routinely passed over for a promotion, you might believe that you are being discriminated against in violation of Title VII for your national origin, race, or color. When you make a complaint to Human Resources, it may turn out you were actually passed over for promotions because you do not have as much management experience as the employees who were promoted, rather than for any discriminatory reason. In this situation, even though you were wrong, you may still be protected from retaliation. If your employer gets very angry at being accused of discrimination and demotes you, you can still make a claim for retaliation because you had a good-faith belief in the discrimination.  

If you suspect that your employer has retaliated against you, you will need to show a link between the action that you believe caused the retaliation and the retaliatory behavior. You will need to document the retaliatory behavior and save any documentation of your complaint. You will also want to have evidence that your boss was happy with your job performance before you complained.

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