A variety of state and federal laws protect employees from retaliation by their employers for speaking up about certain workplace issues or for exercising certain legal rights related to their employment. For instance, state and federal laws prohibit an employer from retaliating against an employee for engaging in a “protected activity,” such as reporting sexual harassment or other discriminatory treatment based on protected characteristics such as age, gender, disability status, race, religion, and others.
Employers should proceed with caution
Continuing a trend, retaliation claims accounted for more than half of employee discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) in 2021. While some of these charges were likely unfounded, these numbers are a bellwether for the number of disgruntled workers in the workplace.
Anatomy of a retaliation claim
The classic retaliation scenario is that, after an employee reports something illegal or negative to the employer or otherwise asserts their employment rights, the employer takes unlawful adverse employment action against them. While many may think of wrongful discharge as the usual adverse action, negative employer actions cover a broad range of prohibited conduct.
The U.S. Department of Labor defines an adverse action as one that “would dissuade a reasonable employee from raising a concern about a possible violation or engaging in other related protected activity … [and] … can have a negative impact on overall employee morale.” In other words, retaliation may be designed to provide a warning to other employees to keep their complaints to themselves.
For example, in addition to wrongful termination, an adverse action could also include a demotion, a transfer to a less desirable position or shift, a decision not to promote the employee, undeserved or unwarranted disciplinary action, and a negative or unfair performance evaluation. In other words, while some instances of retaliation or overt, others forms of retaliation are much more subtle.
In part 2 of this post, we will share information about retaliation, protected actions, and the need for attorney guidance.
