Workplace Retaliation

November 18, 2022

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.

What is Workplace Retaliation?

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:

  • filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
  • communicating with a supervisor or manager about employment discrimination, including harassment
  • answering questions during an employer investigation of alleged harassment
  • refusing to follow orders that would result in discrimination
  • resisting sexual advances, or intervening to protect others
  • requesting reasonable accommodations for a disability
  • requesting accommodation for a religious practice
  • asking managers or co-workers about salary information to uncover potentially discriminatory wages.

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.

Adverse Employment Actions

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::

  • reprimand the employee or give a performance evaluation that is lower than it should be;
  • transfer the employee to a less desirable position;
  • engage in verbal or physical abuse;
  • threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police);
  • increase scrutiny;
  • negative evaluations or poor performance reviews
  • salary reduction or pay cut;
  • spread false rumors, treat a family member negatively (for example, cancel a contract with the person's spouse); or
  • make the person's work more difficult (for example, punishing an employee for an EEO complaint by purposefully changing his work schedule to conflict with family responsibilities or disparaging them during staff meetings).

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.

Causal Connection in Adverse Employment Action

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:

  1. You engaged in a protected activity;
  2. You were subjected to an adverse employment action by your employer, and
  3. There is a causal link between the negative actions your employer took and the protected activity you engaged in

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:

  • close temporal proximity between the protected activity and the negative repercussions,
  • a sharp decline in performance evaluations that begins when the employee spoke out, and
  • co-workers who are not treated as harshly for similar conduct or who face lower job performance standards.

Unlawful Workplace Retaliation

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:

  1. file a complaint with the labor commission; or
  2. maybe able to file a civil lawsuit seeking monetary damages.

What Activity Is “Protected” from Retaliation in the Workplace

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.

Are workplace retaliation claims the same as discrimination claims?

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:

  • Complain about or opposes unlawful discrimination in the workplace;
  • Participates in legal or agency proceedings regarding discrimination claims;
  • Take approved Family and Medical Leave Act or sick leave;
  • Request a reasonable accommodation for a disability; or
  • Engages in whistleblowing.

What is a reasonable accommodation?

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:

  • the employer to enter into an “interactive process” with you, and
  • do so in a reasonable effort to help find appropriate accommodation.

An “interactive process” refers to communication between the employer and you that:

  • helps the employer find suitable accommodation, and
  • ensures that it assists you in performing the essential functions of a job.

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:

  • your disability is observable, or
  • someone else informs the employer of your disability.

Suspected Retaliation in the Workplace

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.

What should I do if I experience workplace retaliation?

two people having a discussion

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.

Employment Laws

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.

Employment Lawyer

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:

  • Lost Wages
  • Lost Benefits
  • Diminished Earning Capacity
  • Pain and Suffering
  • Punitive Damages

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.


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