Retaliation in the workplace happens when your employer takes an adverse action against you for exercising your rights or for engaging in a legally protected activity . Those adverse actions can be overt, like firing or demoting you, or less obvious, like taking away workplace responsibilities or altering your work schedule. It is up to you to prove that the adverse action was retaliatory.
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Examples of workplace retaliation
Any adverse employment action can amount to retaliation if it is done because you either:
- exercised your workplace rights, or
- engaged in legally protected activities.
An employment action is adverse if it changes the terms and conditions of your employment for the worse . Some clear examples of adverse employment actions are:
- discharges,
- demotions,
- layoffs,
- salary reductions,
- reduced benefits,
- imposing disciplinary action, and
- making the workplace such a hostile work environment that you are forced to quit, also called a constructive termination .
Some less obvious developments that you can experience in the workplace that could amount to an adverse employment action are:
- transfers or reassignments to a worse position,
- reducing your workplace responsibilities or leadership potential,
- negative job performance reviews,
- changing your supervisor to someone you do not like or who works employees harder,
- not promoting you,
- not giving you a raise,
- altering your workplace, like moving your worksite or taking away support staff, and
- changing your work schedule in ways that go against your needs or desires.
Our employment lawyers have found that these less obvious forms of retaliation can be more difficult to prove to be retaliatory. However, in many cases, the circumstances surrounding the new difficulties that you are facing at work can be used to prove that you have been the victim of employer retaliation.
Workplace rights that can lead to a retaliation claim
If one of these adverse employment actions is due to you invoking your workplace rights, it can be unlawful retaliation. Some examples of your workplace rights are :
- filing for workers’ compensation ,
- taking paid time off that you have accumulated,
- speaking up against harassment or workplace discrimination , such as discrimination based on immigration status or national origin,
- talking about your salary with coworkers, and
- getting paid for your work.
If you invoke one of these or other legal rights in the workplace, and then suffer an adverse employment action, you may have a retaliation claim.
Protected activities
There are also some activities that are legally protected . If you engage in any of these, and then suffer an adverse employment action, you can bring a retaliation claim. Legally protected activities include:
- reporting workplace harassment or employment discrimination,
- asking for a reasonable accommodation for your religion or disability,
- reporting unsafe working conditions, such as by contacting the Office of Safety and Health Administration (OSHA),
- lawful whistleblowing activities,
- reporting criminal conduct in the workplace to your supervisor or law enforcement, and
- engaging in political activity or having a certain political affiliation.
If your employer violates any of these protections then it can amount to retaliation.
How to prove it was retaliation
It is up to you to prove that the adverse action was in retaliation for your protected activity or for invoking a workplace right. This can make it seem extremely difficult to prove a case of retaliation. However, the employment lawyers at our law firm have found that the following pieces of evidence are important to support a retaliation claim:
- emails and other written communications, like text messages, between your supervisors,
- telephone records of your supervisor’s calls,
- whether your employer’s explanations for the adverse action change over time,
- witness testimony from your coworkers, who may have noticed a shift in the workplace atmosphere,
- testimony from former workers who can attest to how often retaliation has happened in your workplace,
- whether the adverse action deviated from your employer’s policies,
- notes in your personnel file, and
- the timing of the adverse action after you engaged in a protected activity.
Getting access to this evidence can often only be done by filing a retaliation claim.
Generally, proving that you have been retaliated against involves a burden-shifting approach. According to the California Supreme Court:
“In order to establish a prima facie case of retaliation under [California’s Fair Employment and Housing Act (FEHA)], a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘drops out of the picture,’ and the burden shifts back to the employee to prove intentional retaliation.”[1]
How to file a claim in California
Under California state law, you generally have to file a complaint, first. This would go to either the:
- Civil Rights Department (CRD), formerly the Department of Fair Employment and Housing (DFEH), if your complaint is under a state labor law, like FEHA, or
- S. Equal Employment Opportunity Commission (EEOC), if it is under federal law, like Title VII or the Family and Medical Leave Act (FMLA).
This government agency will investigate your claim and try to resolve the situation through mediation. If this complaint process does not fix things, you can get a “right to sue” letter and file a retaliation lawsuit in California state court or in federal court.
Our employment lawyers have found that it is generally a good idea to bring your retaliation complaint to your human resources (HR) department first, though. Their explanation for the negative action or retaliatory behavior can be used against your employer in some cases. Going to HR first also shows that you made a good faith effort to fix things according to company policy, but it didn’t work.
Legal Citations:
[1] Yanowitz v. L’Oreal USA Inc., 36 Cal.4th 1028 (2005) .
