Retaliation: FAQs

Workplace retaliation claims may arise from numerous federal and state employment laws that forbid actions being taken against employees filing complaints under those laws. Possible forms of retaliation include firing, suspension, demotion, transfer, and even hostile work environments.

In order to prove retaliation, an employee must prove three elements:

1. He/she engaged in a protected activity;
2. An adverse employment action occurred; and
3. There was a causal connection between the protected activity and the adverse employment action.

What is considered an adverse employment action is one of the most contentious points battled out in court. Some courts have decided that adverse employment actions cover only “ultimate employment decisions,” such as termination, demotion, refusal to hire or promote, compensation, and granting leave. But other courts define adverse employment actions more broadly to include any actions that result in a significant change in employment status and actions that materially alter the terms and conditions of employment.

The courts have defined eight protected activities.

1. Filing discrimination charges with the EEOC or a state human rights agency.
2. Filing unfair labor practices charges with the National Labor Relations Board or a state agency.
3. Filing a Workers’ Compensation claim.
4. Filing a complaint with Occupational Safety and Health Administration about safety hazards or refusing an assignment because of the fear it might be dangerous.
5. Engaging in lawful union activities.
6. Filing an equal pay or wage/hour violation.
7. Opposing or publicizing policies that violate laws, such as the Equal Pay Act, antitrust laws, or consumer protection laws.
8. Reporting fraud, corruption, or other forms of lawbreaking covered by the Racketeering and Corruption Organization Act, the Whistleblower Protection Act, the Sarbanes-Oxley Act, or by state whistleblower statutes.

Here is some need-to-know information all company execs must have to avoid retaliation lawsuits.

• Adverse employment actions don’t just include major employment decisions like demotion or termination; decreased responsibilities, lowered performance ratings, failure to accommodate an employee’s disability, etc., may also be considered signs of retaliation or a retaliatory motive. Courts have also ruled that a continuous series of small actions can add up to retaliation over time.
• Engaging in a protected activity, such as filing a discrimination complaint, doesn’t immunize employees from your company’s performance and behavior standards. Keep accurate documentation of employees’ shortfalls.
• Complaints filed in good faith are protected, even if they are found to be meritless.
• At-will status is not a viable defense against a retaliatory termination charge.
• Non-employees, such as former employees and independent contractors, may also be protected from retaliation.
• The more employees know, the stronger your legal defenses. So publicize your anti-retaliation policies, specify to whom employees can go with retaliation complaints, and encourage employees to report managerial misbehavior.

4. Can an employer legally terminate an employee who has filed a discrimination claim without running the risk of a retaliation lawsuit?

A discharge on the heels of a discrimination claim has retaliation written all over it. That’s why you need to have solid, written proof of the employee’s problems to justify the termination. But if it’s not done right, the decision may still be deemed retaliatory. Use this checklist to assess the retaliation perception potential of your decision.

• Watch your timing. Courts look for evaluations that go from outstanding to poor almost overnight. This company needs to have solid evidence of the employee’s continual performance problems.
• Remain objective. Compare performance evaluations with those of employees who have not filed discrimination complaints to make sure that personal feelings haven’t clouded your judgment. For instance, make sure that you have recorded favorable information along with the bad. Records filled only with negatives may seem like an attempt to build a case against an employee—a major retaliation red flag.
• Tell the unvarnished truth. Fabricating negative information about the employee may help prove a retaliation claim. On the other hand, giving higher performance ratings than those deserved will contradict performance-based termination decisions.
• Stick to a performance review schedule. Reviewing performance at irregular times may be perceived as an attempt to build a case against an employee, especially if you conduct a review right after a discrimination complaint is filed. This doesn’t mean you can’t counsel poor performers or issue warnings for declining performance; just make sure you handle all problem performers in accordance with pre-determined standards.
• Be consistent. Inconsistent performance ratings may be a telltale sign of retaliatory motives. If you must discipline an employee for poor performance, make sure the penalty imposed is consistent with discipline you have handed down in the past for similar performance shortcomings.

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