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Workplace retaliation is when an employee suffers an adverse employment action because he or she engaged in a protected activity. 5 examples of an adverse employment action are:
- firing or demoting the employee,
- reducing the employee’s salary or benefits,
- changing the employee’s work schedule,
- transferring the employee, and
- denying the employee a promotion or a raise.
If any of these negative actions happen because the employee engaged in a protected activity, it can amount to workplace retaliation. Proving that it was retaliation involves showing 3 things:
- the employee engaged in a protected activity,
- the employee suffered an adverse employment action, and
- there is a causal connection between the two.
1. Can an employer fire or demote a worker for engaging in protected activity?
One of the most egregious examples of workplace retaliation is when the employer terminates, fires, or demotes an employee for engaging in a protected activity.
Demoting a worker, alone, can amount to retaliation.[1]
In many cases, the termination only comes long after the protected activity. Over the course of that time, though, the employer may have consistently reprimanded the employee for trivial things and written poor performance reviews to justify the eventual discharge. There may be demotions during this time period, as well.
A termination does not necessarily have to be outright, though. An employee can be constructively discharged if his or her employer knowingly makes their working conditions so bad or intolerable that even a reasonable employee would have quit.[2]
2. What if my salary or benefits are reduced?
Another adverse employment action that can amount to workplace retaliation is if an employee’s salary or benefits are cut after they do something that is legally protected.
This includes decreases in compensation or benefits like:
- hourly wage,
- salary,
- commission payments,
- paid time off,
- sick leave,
- family medical leave under the Family and Medical Leave Act (FMLA), or
- overtime opportunities.
3. What if my employer changes my work schedule?
Changing an employee’s work schedule can also amount to retaliation if it is done because the worker performed a protected activity.
Schedule changes that can amount to retaliation can include:
- mandatory weekend hours,
- a shift change,
- significantly reducing or increasing the employee’s shift lengths, or
- constantly altering the schedule in ways that keep the employee from making long term plans.
4. Can it be retaliation if I was transferred or reassigned?
A transfer to another location or reassignment to another role in the company can be a retaliatory action, as well.
Punishing employees by moving them to a less suitable location or into a role with more difficult job duties is a common form of retaliation. Employers often use it to set an example. By making it clear what happens when a worker speaks up, employers can deter future whistleblowing or behavior that they see as problematic.
5. What if I was denied a promotion or a raise?
Denying a promotion or a raise can also be retaliation.
Some employers use promotions and pay raises as leverage over their employees. If their employees are speaking out against workplace issues, employers may rescind these professional advancements. Not only does this retaliate against the targeted employee; it also deters others from speaking up, out of fear of their careers.
Employees may need to report their complaints to their HR department before filing a claim.
How can I prove a workplace retaliation claim?
To prove that one of these adverse employment actions was workplace retaliation, employees have to show 3 things:
- they engaged in a protected activity,
- they suffered one of these negative workplace consequences, and
- the adverse employment action was caused by the protected activity.[3]
Protected activities include:
- speaking out against sexual harassment or some other form of employment discrimination, like national origin discrimination, in the workplace,
- reporting an employer’s potentially unlawful activity to law enforcement,
- making a workers’ compensation claim,
- engaging in certain political activities, and
- questioning the employer’s immigration policies.
There are numerous state and federal employment laws that protect workers when they do these things. For example, in California, they include:
- Title VII of the Civil Rights Act,
- Age Discrimination in Employment Act (ADEA),
- Americans with Disabilities Act (ADA),
- Sarbanes-Oxley Act, and
- California Fair Employment and Housing Act (FEHA).
Many other federal and state anti-discrimination laws provide their own protections against retaliation against workers who have engaged in protected activity.
Proving causation is often the most difficult part of a retaliation claim. The causal connection between the protected activity and the adverse employment action depends on the law that is being invoked. Some are more stringent than others. For example:
- whistleblower retaliation claims under the Sarbanes-Oxley Act have to show that the protected activities were a contributing factor in the adverse employment action,[4]
- retaliation claims under the FEHA have to show that the protected activity was a substantial motivating reason for the employment consequences,[5] and
- retaliation claims under the ADEA or Title VII have to show that the protected activity was the but-for cause of the adverse employment action.[6]
There is rarely any evidence that directly shows that the employer acted out of retaliation. Instead, employees usually have to rely on circumstantial evidence that ties the protected activity to the adverse action in the workplace. This often includes:
- close temporal proximity between the protected activity and the negative repercussions,
- a sharp decline in performance evaluations that begins when the employee spoke out, and
- co-workers who are not treated as harshly for similar conduct or who face lower job performance standards.
What should I do if I think I have been retaliated against?
If you think you have been the victim of retaliation in the workplace, it is important to see an employment lawyer for legal advice, right away. Many employment laws have their own set of procedures to follow. Not following them can doom your case.
Many state and federal anti-discrimination laws let employers mandate that their employees report their complaints to their human resources department, first. If this step is not followed, it can undermine the employee’s retaliation case.
If the claim falls under Title VII, the next step is to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The EEOC will facilitate a mediation between the employee and the employer to try to resolve the issue. If no resolution is reached, or if the employer does not act in good faith, the EEOC will conduct an investigation. After the investigation, the EEOC may take over the case on the victimized employee’s behalf, or may issue a Right to Sue Letter which gives the worker the right to take their claims to court.
[1] Judicial Council of Civil Jury Instructions (“CACI”) 2505.
[2] Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238 (1994).
[3] See CACI 2505.
[4] Feldman v. Law Enforcement Associates Corp., 752 F.3d 339 (4th Cir. 2014).
[5] CACI 2505.
[6] Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009) (ADEA) and University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013) (Title VII).
About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
