Retaliation at Work - Stopping Employers who Retaliates against Employees

A. The law protects employees from retaliation by employers for asserting protected rights. The gist of a retaliation claim is that an employer "gets back" at an employee for doing something protected by law. To win a retaliation claim, an employee must prove that:

he engaged in protected conduct;
his employer took an “adverse action” against him; and
the employer took the adverse action because the employee engaged in protected conduct.

Q. What conduct is “protected?”

A. Laws prohibiting workplace discrimination and other workplace laws protect employees who assert the rights given to them by those laws. “Protected conduct” is thus the conduct that are particular law defines as protected.

Q. What are some examples of protected conduct?

A. The National Labor Relations Act (NLRA) protects employees who collectively complain about terms or conditions of their employment, whether or not they are members of a union. The Civil Rights Act of 1964 prohibits retaliation for actions taken to be free from employment discrimination. The United States Constitution protects public employees from retaliation for exercising their right to free speech. Governments cannot, for example, use their power to chill public speech. Governments therefore cannot retaliate against citizens working for them if they exercise their free speech rights.

Q. Is an employee who incorrectly complains about discrimination still protected from retaliation?

A. Yes. Retaliation law protects employees who assert rights protected by law even when the employees are wrong about whether their rights were violated. So long as the employee has a good faith belief that her employer’s conduct is unlawful, she can challenge that conduct free from a threat of retaliation.

For example, a salaried employee may complain to the Department of Labor’s (DOL)Wage and Hour Division about her employer’s failure to pay her overtime. If the DOL investigates and concludes that she is not entitled to overtime, she still has right to be free from reprisal for complaining.

Q. If I am worried about getting fired, does this mean I should complain about discrimination?

A. Probably not. You must have a good faith belief that your employer was violating the law. If you are actually complaining to avoid a discharge, you may not be able to prove a good faith belief in the complaint you make. In addition, complaining about discrimination and other workplace right violations may irritate your employer, tempting it to retaliate, especially if the complaints are not well founded.

Q. My spouse felt that she was the victim of gender based pay discrimination but is afraid to complain. I work at the same place she does. If I complain for her, am I safe from retaliation?

A. Probably. Courts have tended to push the boundaries of protected conduct to reach people who are helping others assert their workplace rights. The federal Civil Rights Act prohibits an employer from discriminating against its employees “because (such employee) has opposed any practice made unlawful” by that law.

Therefore, your employer cannot retaliate against you for opposing unlawful discrimination against your spouse.

Q. I complained about a racist statement that my boss made to me. The company reprimanded my boss, who has written up bogus disciplinary warnings. Can I sue for retaliation?

A. Probably not, at least not yet. You need a so-called “tangible, adverse employment action in order to file a suit.” Generally speaking, an adverse employment action must result in a monetary loss in order to be tangible. Therefore, a bogus write up is probably not tangible enough.

Q. How tangible does retaliation have to be in order to file a suit?

A. The U.S. Supreme Court recently defined how much the employee must suffer to have a tangible employment action. In Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405 (U.S. 2006), the Supreme Court defined a tangible, adverse action as one that:

would have been materially adverse to a reasonable employee or applicant. . . . [A] retaliation plaintiff (must) show that the challenged action well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.

In Burlington the company suspended an employee for 37 days without pay after she made a complaint but then reversed course and paid the employee for her lost wages. The question before the court was whether the adverse action (the suspension) was "tangible" because the employee ended up not losing money. The Court said that it was since, based on the test quoted above, a reasonable person would not make the complaint in the first place knowing that she would go 37 days without pay or an assurance of being paid. Other possible examples may include transfer to an undesirable location, a serious loss in responsibility or prestige or placement on a lousy shift, if they would be enough to deter employees from asserting their rights.

Q. I quit right after I filed a complaint against my employer with OSHA. Now that employer is giving me bad references. Is that retaliation?

A. It sure is. An employer generally cannot retaliate against a former employee. Courts have allowed employees to recover damages resulting from retaliatory employer references.

Courts may also treat unwarranted criminal prosecutions and unjustified government investigations as retaliatory. In addition, certain actions taken during the course of litigation, such as the filing of a counterclaim designed to intimidate the employee pursuing the lawsuit, are covered. Again, if the employer’s action will deter an employee from asserting protected rights, it can form the basis of a retaliation claim.

Q. How can I prove retaliation at work?

A. Since employers rarely admit retaliation, employees must prove that there is a connection between their protected conduct and the employer’s adverse action. Employees can prove a connection with evidence of:

the lack of an investigation into the employee’s complaint,
unequal treatment of the complaining employee;
an adverse action close in time to the protected conduct;
a pattern of adverse actions and even outright hostility over time towards complaining employees; or
a bogus explanation for the employer’s adverse action.

Q. How close in time must the retaliation be?

A. Time is probably the most important evidence of a connection between protected conduct and reprisal. Since the gist of a retaliation claim is that the employer “got mad and got even,” courts expect employers to hit back quickly. As a result, courts have dismissed retaliation claims based on adverse actions taken months after the protected conduct.

In some cases the employer might wait patiently to retaliate in a tangible way. In many cases, the employer will still take less tangible actions early on, such as an immediate, unwarranted reprimand. Even though a reprimand might be enough for a retaliation claim by itself, it may be the proof necessary to connect a discharge some months down the road to the employee’s protected conduct.

Q. Is there such a thing as retaliation by harassment?

A. Yes. A campaign of retaliatory harassment, even without a discharge or other economic loss, can be severe and tangible enough for a lawsuit.

Q. What sort of unequal treatment indicates retaliation?

A. This evidence of discriminatory retaliation is identical to that used to prove gender, age, race and other types of discrimination claims. This evidence includes the employer treating you differently from and worse than similarly situated employees who did not complain. It can also include a new employer policy that has a singularly adverse affect on the complaining employee.

Q. How can a bogus employer explanation for the adverse employment action prove retaliation?

A. A bogus employer explanation is known as a “pretext.” Since an employer is in the best position to know why it discharged an employee, proof that the employer made up a bogus reason allows an inference that the employer is hiding an unlawful reason. That can be enough for a jury to find that the real, unlawful reason is retaliation.

Q. How could my employer’s failure to investigate my complaint show retaliation?

A. An employer should investigate every employee complaint. A failure to do a minimum investigation indicates that the employer did not take the complaint seriously, which may permit the inference that the employer resented the complaint. A minimum investigation should include:

An interview of the complaining employee, the accused employee and any witnesses.
A reasonable conclusion about the validity of the complaint; and
A response consistent with that conclusion.

Q. What can I do while my boss is retaliating against me if I cannot file a lawsuit or choose not to do that?

A. First, do not give your employer any excuse to retaliate against you with discipline. Be the company’s best employee ever. Be polite and professional to the retaliator.

Second, keep a record of everything that happens to you. Keep documents that back up what you say as true.

Third, respond to unwarranted reprimands with polite rebuttals. You have to walk a fine line between holding your ground and appearing unwilling to correct alleged performance deficiencies. If you are at that point, consider working with an attorney on a response.

Finally, take a look at other employment opportunities. There is no shame in walking away from an abusive environment.

However, if you do not have a good exit lined up and you allow your employer no excuse to retaliate, the retaliation will either stop or you may have a good retaliation case that is worth pursuing.

Q. Where can I find more information about retaliation at work?.

Search My Employment Lawyer's Answers about Workplace Retaliation. You can also contact us with a specific question. We do not guarantee an answer and charge $200.00 for an initial consultation. We therefore look at our email inquiries as an opportunity to help you decide whether a consultation makes sense for you.

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