Workplace retaliation occurs when an employee engages in an Equal Employment Opportunity (EEO), California Fair Employment and Housing Act (FEHA) protected act, or opposes an illegal employment practice and experiences an adverse action.
Workplace retaliation refers to a scenario in which an employer takes adverse action against an employee because the worker exercised a right or engaged in a legally protected activity.
The EEO laws prohibit punishing job applicants or employees for asserting their rights to be free from employment discrimination, including harassment. Asserting these EEO rights is called "protected activity" and can take many forms. For example, it is unlawful to retaliate against applicants or other employees for the following protected activities:
Participating in a complaint process is protected from retaliation under all circumstances. Other acts to oppose workplace discrimination are protected as long as the former employee was acting on a reasonable belief that something in the workplace may violate retaliation laws, even if he or she did not use legal terminology to describe it.
Engaging in EEO activity, however, does not shield employees from all discipline or discharge. Employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences. However, an employer cannot do anything in response to protected activity that would discourage someone from resisting or complaining about future discrimination.
For example, depending on the facts, it could be retaliation if an employer acts because of the employee's protected activity to::
Sometimes it's clear that an employer's action has a negative impact—for instance, when an employee is fired, but not always.
In those cases, according to the U.S. Supreme Court, you must consider the situation's circumstances. For example, a change in job shift may not be objectionable to many employees, but it could be detrimental to a parent with young children and a less flexible schedule.
Retaliation claims can be complex due to the multiple federal and state statutes that may be invoked in any particular case. To prove a workplace retaliation claim, you are required to demonstrate three things:
All three of these elements must be proven. Proving causation is often the most challenging 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.
There is rarely any evidence showing that an employer acted out of retaliation. Instead, employees usually have to rely on circumstantial evidence that ties the protected activity to the adverse action in the workplace. This often includes:
Workplace retaliation refers to a scenario in which an employer takes adverse action against a reasonable employee because the worker exercised a right or engaged in a legally protected activity. Victims of retaliation and workplace discrimination can:
An employer is prohibited from retaliating against an employee who engages in “protected activity.” Employees engage in protected activity when he or she complains about, oppose, or report unlawful discrimination. The employee must have a good-faith belief that the subject of the complaint actually violates anti-discrimination laws in the workplace.
Additionally, an employee is protected from retaliation even though he or she is complaining about the unlawful discrimination of another employee.
Under California law, an employee also engages in a protected activity if the person requests a reasonable accommodation for a known physical or mental disability or if the person engages in whistleblowing and reasonably believes that they are reporting a violation of or non-compliance with a state or federal statute.
A claim for workplace retaliation is not the same as a claim for discrimination. Often, retaliation claims are more substantial than discrimination claims. Retaliation protection extends to employees who:
California employment law imposes an affirmative duty of “reasonable accommodation” on an employer when it learns that an employee or injured worker has a particular known disability. In this situation, the employer has a legal duty to reasonably accommodate, or provide for, the disabled employee that allows the performance of the employee's job duties.
This duty applies unless providing accommodation for the injured employees or employees' disability imposes an “undue hardship” on the employer. Note that once an employer learns of your disability, California law requires:
An “interactive process” refers to communication between the employer and you that:
Note that if you request a reasonable accommodation, the employer must respond to it promptly and act in good faith. Even if you do not directly request an accommodation, an employer should provide one as long as:
Suppose you suspect you are facing workplace retaliation; first, talk to your supervisor or a human resources representative about the reasons for these hostile acts or other penalties. It's fair to ask specific questions.
There may be a perfectly reasonable explanation—you have been moved to the day shift because there's an opening, and that is what you had previously requested, or you are being demoted after a longstanding history of documented performance problems.
If your employer can not give you a legitimate explanation, voice your concern that you are being retaliated against. No doubt your employer will deny it—and in truth, employers can retaliate without realizing it. It would be best if you pointed out that the adverse action only occurred after you complained and asked that it stop immediately.
If you think you have been the victim of retaliation in the workplace, it is essential to see an employment lawyer for legal advice immediately. Filing a retaliation case is challenging; many states have varying sets of procedures in employment law. Obtaining an employment lawyer will significantly benefit your retaliation in the workplace case by protecting your sensitive information through a secure attorney-client relationship.
State and federal law allow employers to mandate that their employees report their complaints to their human resources (HR) department first. If this step is not followed, it can undermine the employee’s 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 the employee and the employer to try to resolve the issue. The EEOC will investigate the retaliatory act if no resolution is reached or the employer does not act in good faith.
After the investigation, the EEOC may take over the case on the victimized employee’s behalf or issue a right-to-sue letter giving the worker the right to take their claims to court.
If the claim falls under California law, an employee must file a charge with the California Civil Rights Department (CRD) and obtain a right-to-sue letter before filing a lawsuit.
Retaliation in the workplace is illegal. Workplace retaliation victims should retain a skilled employment lawyer from Freeburg & Granieri, APC, Law Firm to ensure their claim is successful. Our law firm has vast experience in recovering damages such as:
Unfortunately, the statute of limitations for bringing your claim forward can be as short as 180 days, so take action now. Call an employment lawyer at Freeburg & Granieri law firm today for the benefits of an attorney-client relationship in your workplace retaliation case.
Our clients become friends, confidants, and repeat customers. Former clients are our best referral source.
Do not be a commodity, find an attorney who treats your legal issue with the care it deserves.