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Employment Law: Retaliation



Most people suffering harassment or discrimination at work are scared of reporting it. They think their employer will just fire them if they rock the boat. This is why a lot of employers get away with illegal employment practices: they think no one will stand up to them. Employers aren’t allowed to retaliate against you like that though. Specifically, they can’t take an adverse action against a covered individual because he or she engaged in a protected activity. Read on to learn about what that means in practice.

Adverse Employment Actions

An adverse action is anything an employer does to try to stop an employee opposing discrimination or participating in an employment discrimination proceeding. Examples of adverse actions include: termination, refusal to hire, or denial of promotion; threats, unjustified negative evaluations, unjustified negative reviews, or increased surveillance; assaults or unfounded civil or criminal charges; actions taken against a disabled employee’s close family members because of the employee’s opposition to disability discrimination; and other things that are likely to deter an employee from fighting discrimination.

However, adverse actions do not include small slights such as stray negative comments in an evaluation, “snubbing” a colleague, or negative comments that are justified by an employee’s poor work performance.

Retaliation doesn’t just apply to the employer the employee complained about either. It’s also illegal for a worker’s current employer to retaliate against him or her for pursuing an discrimination or harassment charge against a former employer.

Of course, employees are not excused from continuing to perform their jobs or following their company’s legitimate rules just because they have filed a complaint with the EEOC or opposed discrimination.

Covered Individuals

Covered individuals are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability. Individuals who have a close association with someone who has engaged in such protected activity may also be covered individuals. For example, it is illegal to terminate an employee because his or her spouse participated in disability discrimination litigation.

People who report their employer for violating some federal laws are also protected by the Whistleblower Protection Act. This prevents employers from retaliating or threatening to retaliate against an employee who stands up against illegal activities.

Protected Activities

There are two types of protected activity: opposition to a practice believed to be unlawful discrimination and participation in an employment discrimination investigation or litigation.

Opposition is protected so long as it is based on a reasonable, good-faith belief that the employer is violating anti-discrimination laws and the employee opposes the practice in a reasonable way.

Examples of protected opposition include: complaining to anyone about alleged discrimination against oneself or others, threatening to file a charge of discrimination, picketing in opposition to discrimination, and refusing to obey an order reasonably believed to be discriminatory. But, here are some examples of activities that are NOT protected opposition: actions that interfere with job performance, unlawful activities such as acts or threats of violence.

Participation in an employment discrimination proceeding is also protected activity. Participation is protected even if the proceeding involved claims that ultimately were found to be invalid. Examples of participation include: filing a charge of employment discrimination, cooperating with an investigation of alleged discriminatory practices, and serving as a witness in an discrimination investigation or litigation.

Requesting a reasonable accommodation based on religion or disability is also a protected activity. So that’s the basics of retaliation claims. Hopefully it’ll never happen to you, but if it does, you need to know your rights.