No person should have to choose between keeping their job and speaking up about discrimination or harassment in the workplace. Fortunately, retaliation in the workplace is prohibited by various federal and state laws.
It can be overwhelming to understand what the law says, but as an overview, in most cases, to establish a claim for retaliation, you must prove all of the following:
- Protected activity
- Adverse action
- Causal connection
What is a “protected activity”?
It is illegal to retaliate against a person because they complained about discrimination or harassment or opposed discriminatory/unlawful practices imposed by their employer. These are some examples of protected activities, but there are many other forms of protected activity, such as:
- filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), or participating as a witness in an EEOC charge, complaint, investigation, or lawsuit;
- reporting to your supervisor, manager, or human resources about employment discrimination and/or harassment directed at you or others;
- participating in your employer’s investigation of alleged discrimination and/or harassment;
- opposing discrimination and/or harassment in the workplace;
- resisting sexual advances, or intervening to protect others; and
- requesting an accommodation related to your disability or religious practice.
As long as you were acting upon a reasonable belief that something in the workplace was unlawful when you engaged in the protected activity, then any “adverse action” taken against you by your employer will constitute retaliation. In other words, your protected activity must be done in good faith.
What is an “adverse action”?
An adverse action is a negative employment action taken by your employer in response to your protected activity. The adverse action is designed to dissuade you and other employees from opposing or complaining about your employer’s unlawful practices.
Some common examples of adverse actions include:
- demotion; or
- denial of a promotion.
However, there are other actions that your employer could take that may constitute an adverse action, such as:
- transfer to a less desirable work location;
- transfer to a less desirable shift;
- exclusion from meetings and/or trainings; and
- unjust disciplinary actions.
The determination of whether something qualifies as an adverse action must be considered on a case-by-case basis, as every situation is different, but the primary question to ask is, “would the adverse action dissuade a “reasonable person” from engaging in protected activity?”
What is a “causal connection”?
You are not absolutely shielded for engaging in a protected activity. Your employer is still able to discipline or terminate you for non-retaliatory and non-discriminatory reasons. So you have to prove that your employer took the adverse action because of your protected activity—that there was a causal connection. For example, one of the most common ways to establish a causal connection is by showing that your protected activity was closely followed by an adverse action by your employer.
What is the process?
If you honestly and reasonably believe that you or a coworker has been discriminated against or is being subjected to harassment, then you should first check your company’s handbook or policy guidelines to determine the proper procedure for filing a complaint. Usually, you are required to report your issues to a supervisor, management, or human resources. If you choose to make a report, then there are effective ways to document it. The timing of your initial complaint is also important. However, not every situation calls for a complaint to be made, so it may be best to consult with an employment lawyer before taking any action.
But do not wait until your employer has taken an adverse action against you. If you are concerned about workplace discrimination, harassment, retaliation, or any other unlawful activity, we are here to guide you, so that you can protect yourself and/or your coworkers to the fullest. We can help you create a strategy and prepare for the best, while also planning for the worst. Whatever happens as a result of you speaking up or fighting back, we are here for you.
Because your work matters.