The majority of people are aware of laws protecting employees against discrimination and harassment. Nonetheless, many people do not realize these laws also protect employees from retaliation. In other words, employers cannot punish employees who raise discrimination or harassment complaints or cooperate with workplace investigations. Punishment does not mean just firing or demoting: it can include other forms of adverse employment action, from not getting a raise or transferring to a better position to not being allowed to attend training or mentoring sessions.
Workplace Retaliation: What Is It?
A retaliatory action occurs when an employer penalizes an employee for engaging in a legally protected activity. Any negative action against a worker, such as a demotion, a discipline, a firing, a salary reduction, or a job or shift reassignment, can be considered retaliation. Retaliation, however, can also take on a subtler form.
There are times when an employer’s actions are clearly negative, like when an employee is fired. Other times, employers’ actions may not be as negative. According to the Supreme Court, you need to consider the circumstances of the situation in those cases. An employee who has to change shifts may not object, but a parent who has young children and an unpredictable schedule could suffer greatly from the change.
Employers may retaliate against employees so long as their adverse action would deter a reasonable employee from filing a complaint.
Is Retaliation Prohibited in Certain Circumstances?
If an employee complains internally or to an outside agency like the Equal Employment Opportunity Commission (EEOC) about discrimination or harassment at work, they are protected from retaliation under federal law. In other words, a good faith claim is still valid even if it turns out to be unfounded.
Employees who assist with EEOC investigations or give testimony in EEOC proceedings are also protected by law. As a witness in an internal investigation, an employee’s participation is also protected by the Supreme Court. Likewise, other types of activities are protected by federal law, including “whistleblowers” who report unsafe working conditions or those taking FMLA leave.
Some state laws also prohibit employers from retaliating against employees for any other reason, such as filing a workers’ compensation claim.
What Are the Signs Your Employer is Retaliating Against You?
Retaliation by your employer can be hard to detect sometimes. You may experience a change in your supervisor’s attitude and demeanour if you complain about his harassing behaviour. However, if the change means he becomes more professional towards you, that’s not retaliation, even if he’s no longer as friendly as he once was. It is only retaliatory when changes affect your employment.
You’ll have good grounds to be suspicious if something negative happens shortly after you file a complaint. You would have a case if, for example, your boss fired you for not being a “team player” weeks after you complained to management about him sexually harassing you. It is important to remember that not every retaliatory act is obvious or indicates that your job is threatened. A poor performance review may be unfair and unexpected, your boss may micromanage everything you do or you may be excluded from staff meetings for a project you’ve been working on.
How to Proceed If You Suspect Retaliation
Talk with your supervisor or an HR representative about the reasons for these actions if you suspect retaliation by your employer. Be specific when asking questions. Your employer might have an entirely legitimate explanation-you were transferred to the day shift because there was an opening, which you had requested previously, or you were demoted following a long-standing history of poor performance.
Defend yourself against retaliation by expressing your concern if your employer is not able to provide a legitimate explanation. The employer will undoubtedly deny it-and in reality, employers can act in retaliation without realizing it. It is important to point out that the negative action only took place after you complained, and to request that it stop immediately.
The Equal Employment Opportunity Commission (EEOC) or the fair employment agency in your state may be able to resolve the concern if the employer refuses to admit its errors or correct the problem.
How to Build a Case of Retaliation
You will need to show a connection between the behaviour you believe caused the retaliation and your complaint (or another behaviour that you believe triggered the retaliation). You should provide as much evidence as possible to support your claim.
Do this by documenting the alleged retaliatory behaviour. Make sure you keep track of historical information prior to filing your complaint. When your boss claims your performance is poor after you make a complaint, you should look for any emails or other documents showing your boss was happy with your performance before you made the complaint.
Consult With Siman Law Firm
If you have been fired or have lost significant wages due to retaliation, you may want to consult an employment lawyer. An attorney from the Siman Law Firm can help you determine the strength of your case, the compensation you’ll likely receive, and more.