The term workplace retaliation refers to a scenario in which your employer takes adverse action against you because you exercised a right or engaged in a legally protected activity.
Victims of retaliation can
- file a complaint with the labor commission and
- may be able to file a civil lawsuit seeking money damages.
Five common examples of an adverse employment action are:
- firing or demoting you,
- reducing your salary or benefits,
- changing your work schedule,
- transferring you, and
- denying you a promotion or a raise.
If any of these adverse actions happen because you engaged in a protected activity, it can amount to workplace retaliation.
Proving that it was retaliation involves showing 3 things:
- you engaged in a protected activity in good faith,
- you suffered an adverse employment action, and
- there is a causal connection between the two.
1. Can an employer fire or demote me for engaging in protected activity?
One of the most egregious examples of workplace retaliation is when your employer
- fires, or
- demotes you for engaging in a protected activity.
Demoting you, alone, can amount to retaliation.1
In many cases, the termination comes long after the protected activity. Over the course of that time, though, your employer may have consistently reprimanded you 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. You can be constructively discharged if your employer knowingly makes your 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 your salary or benefits are cut after you do something that is legally protected.
This includes decreases in compensation or benefits like:
- hourly wage,
- 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 your work schedule can also amount to retaliation if it is done because you performed a protected activity.
Schedule changes that can amount to retaliation can include:
- mandatory weekend hours,
- a shift change,
- significantly reducing or increasing your shift lengths, or
- constantly altering the schedule in ways that keep you 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 you by moving you 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 you speak 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 you are speaking out against workplace issues, your employer may rescind these professional advancements. Not only does this retaliate against you; it also deters others from speaking up, out of fear for their careers.
Other potential forms of retaliation include:
- unfounded reprimands or poor performance reviews;
- abuse (physical or verbal);
- spreading rumors that are untrue;
- excluding you from activities, meetings, training sessions, etc., that other employees can attend;
- threatening to report you to ICE or the police;
- increased scrutiny of your work performance; and/or
- any action that causes you an undue hardship.
How can I prove a workplace retaliation claim?
To prove that one of these adverse employment actions was workplace retaliation, you have to show 3 things:
- you engaged in a protected activity,
- you suffered one of these negative workplace consequences, and
- the adverse employment action was caused by the protected activity.3
Protected activities include (but are not limited to):
- speaking out against sexual harassment or some other form of employment discrimination, like national origin discrimination, in the workplace,
- asking for a religious or disability accommodation,
- informing police of your employer’s activity that you reasonably believe is unlawful,
- making a workers’ compensation claim,
- serving as a witness in a case against your employer,
- talking with your supervisor/manager about discrimination or harassment,
- resisting a co-worker’s sexual advances (or intervening to stop sexual harassment),
- refusing to follow an order that would cause discrimination,
- taking leave that you are lawfully entitled to take,
- filing a complaint in good faith with the Labor Commissioner or Equal Employment Opportunity Commission (EEOC),
- inquiring about salaries in an effort to uncover discriminatory wages,
- engaging in certain political activities, and
- questioning your employer’s immigration policies.
There are numerous state and federal employment laws that protect you when you 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),
- First Amendment of the U.S. Constitution,
- 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 your employer acted out of retaliation. Instead, you 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 you spoke out, and
- co-workers who are not treated as harshly for similar conduct or who face lower job performance standards.
Be sure to document all instances of retaliation and to compile any physical evidence, such as texts, emails, memos, and video or audio records. Also collect the contact information of witnesses who saw or heard the retaliation.
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 you report your complaints to the human resources department, first. If this step is not followed, it can undermine your 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 you and your employer to try to resolve the issue.
If no resolution is reached, or if your employer does not act in good faith, the EEOC will conduct an investigation. After the investigation, the EEOC may take over the case on your behalf, or may issue a Right to Sue Letter which gives you the right to take your claims to court.
- Judicial Council of Civil Jury Instructions (“CACI”) 2505. See also California Labor Code 6310 & 1102.5. See, for example, Ferrick v. Santa Clara University (. , 2014)
- Turner v. Anheuser-Busch, Inc., (1994) 7 Cal.4th 1238.
- See CACI 2505. See, for example, Yanowitz v. L’Oreal USA, Inc. (2005) .
- Feldman v. Law Enforcement Associates Corp., (4th Cir. 2014) 752 F.3d 339. See also Gardenhire v. Housing Authority (. , 2000)
- CACI 2505. See, for example, Newton v. Equilon Enters., LLC (. , 2019)
- Gross v. FBL Financial Services, Inc., (2009) 129 S.Ct. 2343 (ADEA) and University of Texas Southwestern Medical Center v. Nassar, (2013) 133 S.Ct. 2517 (Title VII).