Retaliation in the Workplace

By Michael L. Fortney


Does the law prohibit Employer retaliation against Employees?

Yes, if the employee engaged in protected conduct.  Retaliation law prohibits employers from "getting back" at employees who do something protected by law. Retaliation claims allow employees to obtain a court order for reinstatement, back pay and other relief when:
  • an employee engages in protected conduct;
  • the employer takes a “material, adverse action” against him or her; and
  • the adverse action is causally related to the protected conduct.
In other words, the law prohibits an employer from getting even with an employee who gets it mad by engaging in protected conduct.

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What is “protected workplace conduct?”

Laws that create workplace rights, such as discrimination, pay, leave and benefits laws, also prohibit retaliation against employees who assert those rights. Each law contains its own anti-retaliation provision. Those anti-retaliation provisions define the boundaries of the conduct that they protect. 

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What are some examples of protected conduct?

An employee who asks for a legal right, such as a reasonable accommodation if disabled or family leave if covered and eligible, engages in protected conduct. 

If an employee objects to workplace age discrimination, he or she engaged in protected conduct.  The same is true of an employee who complains about sexual harassment in the workplace. In addition, an employee who does not complain but participates in a sexual harassment investigation is protected from retaliation. 

Here is a chart of federal retaliation and whistleblower laws, prepared by attorney Richard Renner.

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What if an employee files a charge of discrimination and loses. Is he or she fair game for retaliation?

No. Retaliation law protects employees who assert rights protected by law even when the employees turn out to be wrong about whether their rights were violated. So long as employees have a good faith belief that their employer’s conduct is unlawful, they can challenge that conduct protected from retaliation.

For example, a salaried employee may complain to the Department of Labor’s (DOL)Wage and Hour Division about her employer’s failure to pay her overtime. If the DOL investigates and concludes that she is not entitled to overtime, she still has right to be free from reprisal for complaining. Similarly, if an employer retaliates against an employee who asks for a reasonable accommodation, it is no defense for the employer if the employee does not prove that he or she is an individual with a disability. So long as the employee had a good faith basis for believing that he or she was entitled to ask for an accommodation, the law prohibits the employer from retaliating against the employee for asking for it.

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If employees engage in protected conduct, does that mean their employers cannot fire them?

Not at all. It means that their employers cannot fire them (or take other material, adverse action against them) for engaging in that conduct. Therefore, if an employer has a legitimate, lawful reason to terminate the employee, such as the elimination of the employee's position, the employer is free to do so.

In addition, the law does not protect a groundless or bad faith complaint of discrimination.  Thus, if the only reason that an employee complained about discrimination was to avoid a threat of termination, the law will not treat the complaint as protected.

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My wife and I work at the same place. They pay her less than men who do the same job, but she is afraid to complain. If I complain for her, am I safe from retaliation?

Not necessarily. Some courts hold that the right that you exercise must be your own before the law will protect you against retaliation for exercising it.

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Can an employee who engaged in protected conduct sue for retaliation for a negative performance review?

Probably not, at least not yet. The employee must suffer a so-called “tangible, adverse employment action in order to file a suit.” Generally speaking, an adverse employment action must result in a monetary loss in order to be tangible. Therefore, a negative performance review is probably not tangible enough to support a retaliation claim. However, if the negative review is part of a campaign of retaliatory harassment, or if it is used to justify a retaliatory discharge, it may become actionable at that point.

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How tangible does retaliation have to be in order to file a suit?

The U.S. Supreme Court recently defined how much the employee must suffer to have a tangible employment action in Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405 (U.S. 2006). There the Supreme Court defined a tangible, adverse action as one that:

would have been materially adverse to a reasonable employee or applicant. . . . [A] retaliation plaintiff (must) show that the challenged action well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.

In Burlington the company suspended an employee for 37 days without pay after she made a complaint but then reversed course and paid the employee for her lost wages. The question before the court was whether the adverse action (the suspension) was "tangible" because the employee ended up not losing money. The Court said that it was since, based on the test quoted above, a reasonable person would not make the complaint in the first place knowing that she would go 37 days without pay or an assurance of being paid. Other possible examples may include transfer to an undesirable location, a serious loss in responsibility or prestige or placement on a lousy shift, if they would be enough to deter employees from asserting their rights.

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Is a poor job reference for a former employee retaliatory?

Possibly. Protection against retaliation generally follows employees after they leave employment.  As a result, courts have allowed employees to recover damages resulting from retaliatory employer references.

Courts may also treat unwarranted criminal prosecutions and unjustified government investigations as retaliatory. In addition, certain actions taken during the course of litigation, such as the filing of a counterclaim designed to intimidate the employee pursuing the lawsuit, can amount to retaliation. Again, if the employer’s action will deter an employee from asserting protected rights, it can form the basis of a retaliation claim.

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What evidence is necessary to prove a retaliation claim?

Employees must prove;
  • that they engaged in protected conduct;
  • they suffered a tangible, adverse employment action; and
  • there is a causal connection between their protected conduct and the adverse action.
Proving causation is usually the most difficult part of a retaliation claim.  Employees can prove a causation with evidence of:
  • the timing between the protected conduct and the adverse action;
  • the lack of an investigation into the employee’s complaint,
  • unequal treatment of complaining and non-complaining employees;
  • a pattern of adverse actions or hostility towards other complaining employees; or
  • a bogus explanation for the employer’s adverse action.

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How important is timing?

Time is probably the most important evidence of a connection between protected conduct and a reprisal. Since the gist of a retaliation claim is that the employer “got mad and got even,” courts expect employers to hit back quickly. As a result, courts have dismissed retaliation claims based on adverse actions taken months after the protected conduct.

In some cases the employer might wait patiently to retaliate in a tangible way. In many cases, the employer will take less tangible actions early on, such as an immediate, unwarranted reprimand. Even though a reprimand might not be enough for a retaliation claim by itself, it may be the proof necessary to connect the protected conduct to a discharge several months down the road.

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Is there such a thing as retaliation by harassment?

Yes. A campaign of retaliatory harassment, even without a discharge or other economic loss, can be a material, adverse action if it is severe or pervasive enough to negatively affect an employee's ability to do his or her job.

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What sort of unequal treatment indicates retaliation?

Evidence of discriminatory treatment is identical to that used to prove gender, age, race and other types of discrimination claims. This evidence includes the employer treating the employee who engaged in protected conduct differently from and worse than similarly situated employees who did not complain. It can also include a new employer policy that has a singularly adverse affect on the complaining employee.

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How can a bogus employer explanation for the adverse employment action prove retaliation?

A bogus employer explanation is known as a “pretext.” Since an employer is in the best position to know why it discharged an employee, proof that the employer made up a bogus reason allows an inference that the employer is hiding an unlawful reason. That can be enough for a jury to find that the real, unlawful reason is retaliation.

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How a failure to investigate a complaint show retaliation?

An employer should investigate every employee complaint. A failure to do a minimum investigation indicates that the employer did not take the complaint seriously, which may permit the inference that the employer resented the complaint. A minimum investigation should include:

  • An interview of the complaining employee, the accused employee and any witnesses.
  • A reasonable conclusion about the validity of the complaint; and
  • A response consistent with that conclusion.
If the employer fails to take these basic steps in response to an employee complaint, the employer will invite a jury to question whether the employer was more interested in getting even with the employee for accusing it of discrimination than it is with making sure that discrimination does not occur.

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What can I do as an employer to avoid retaliation suits?

Understand and recognize your employee's rights. When they exercise them, allow them to do so. If your employees' exercise of their rights is upsetting, do not respond out of upset. Take some time before deciding what to do.  Consult legal counsel before taking action.

If you would like an experienced employment lawyer to evaluate your concerns with an employee who has engaged in protected conduct, contact us. We can help you avoid potential retaliation liability.

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What can I do if I am a victim of retaliation?

Check the law that gave you the rights you asserted. It should have an anti-retaliation clause. It will also have a procedure for asserting your right to be free from retaliation. The deadlines for filing these claims are sometimes very short. Therefore, once you know where and how to file a claim for retaliation, do so.

If you are a victim of retaliation and would like to assert your claim, contact Neil Klingshirn. Fortney & Klingshirn offers a comprehensive, initial consultation for $200 for evaluating potential claims of workplace retaliation.

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