Employee Retaliation Claims

Workplace retaliation can be devastating for the employee and employer. Employees who are afraid of retaliation are less likely to report problems to you. That could leave you unaware that your work environment is hostile. Retaliation also hurts employee morale. That can hurt your company’s productivity and bottom line.

Various state and federal laws make workplace retaliation illegal. You should talk to an employment law attorney in your state if you’re facing a retaliation claim. They can explain retaliation under federal and state law and give you legal advice about your situation.

What Is Retaliation?

As an employer, sometimes you have to punish an employee. But there are times when doing so is illegal. Employee retaliation is when you punish an employee for doing something that’s legally protected. Retaliation can also happen to job applicants and former employees. The punishment is an adverse employment action. Examples of adverse actions include the following:

• Termination
• Demotion
• Pay cut
• Transfer to a less desirable shift

The act that’s protected by law is a protected activity. Examples include the following:

• Filing an employment discrimination complaint such as national origin
• Reporting sexual harassment
• Filing a workers’ compensation claim
• Reporting poor working conditions
• Being a whistleblower

What Are Examples of Employee Retaliation?

Illegal retaliation can show up in the workplace in many ways. The following are some examples of retaliation:

• Giving an employee a poor performance review because they refused your sexual advances
• Not promoting an employee because they filed a workplace discrimination claim
• Firing an employee who reported unsafe working conditions to the government

How Does an Employee File a Retaliation Claim?

Your company should have procedures in place to address employee complaints like retaliation. That likely includes allowing the employee to contact your human resources department. But some employees are reluctant to report retaliation to the company. In that case, they can contact the state or federal government.

The government agency that handles the complaint depends on the protected activity. The U.S. Equal Employment Opportunity Commission (EEOC) is an example. It enforces equal opportunity (EEO) laws. So, the EEOC would investigate retaliation from a workplace discrimination complaint.

State and federal agencies have a complaint process they follow. Generally, the process starts with someone filing a retaliation claim. That’s often followed by an investigation and then a finding.

What Are the Defenses to Employee Retaliation Claims?

State and federal laws protect employees against employer retaliation. The best way to defend yourself against a retaliation claim is to ensure it doesn’t happen. But if an employee files a retaliation claim, you can respond to the complaint and present your side.

It can be challenging to win a retaliation claim. To do so, the employee must show that the adverse action and the protected activity were connected. As a defense, you can demonstrate that you took the action for a lawful, non-retaliatory reason. That means you can prove the punishment wasn’t connected to the protected act.

Take a situation where an employee files a sexual orientation discrimination complaint. Soon after they file the complaint, you give the employee a bad performance review. The employee then files a retaliation complaint. The employee must prove you gave them a bad review because they filed the complaint. You may win the case if you prove the employee deserved the bad review.

Proving an action is retaliatory will depend on the evidence. You should document your interactions with employees to protect yourself. For instance, past written performance reviews can show the employee has a history of poor performance. Written reprimands can also help. You can also get statements from co-workers who witnessed past poor performance.

What Are the Remedies for Employee Retaliation?

The damages for retaliation vary by case. Generally, they include the following:

• Back and front pay is the compensation the employee lost because of the retaliation.
• Attorney’s fees are the employee’s costs for bringing the retaliation case.
• Punitive damages are damages to punish an employer for egregious retaliation.
• Rehiring and restoring the employee to their previous status.

Contact an Employment Lawyer for Help

You should contact an employment lawyer if you’re dealing with a retaliation case. They can explain your legal rights. They can also help you prove your actions were legal and non-retaliatory.