What is workplace retaliation?

Retaliation occurs when an employer takes an adverse action against a covered individual because he or she engaged in a protected activity.

Having to report harassment in the workplace to a supervisor can be emotionally difficult — but the threat of retaliation can make it even harder. According to the EEOC, retaliation against an employee for making a complaint is illegal under all of the laws enforced by EEOC and the Americans with Disabilities Act. Yet claims of retaliation are commonplace and can result in serious legal action against an employer. 

"Claims of retaliation can result in serious legal action."

What constitutes retaliation? 

Retaliation, as defined by the EEOC, occurs when an "employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity." Adverse actions may include:

  • Termination or demotion
  • Denial of promotion
  • Threats
  • Unjustified negative employee evaluations
  • Any action that may adversely affect a worker's ability to be hired elsewhere

Actions like a negative tone or being ignored socially of an employee is not considered an adverse action unless it impacts the employee's employment or promotion prospects, but these action may constitute harassment at work.  

What is a 'protected activity'?

The "protected activity" refers to an employee engaging in an act that stands in opposition to discrimination. This can include:

  • Reporting discrimination based on race, color, sex, religion, national origin, age or disability
  • Publicly opposing a discriminatory action
  • Refusing to obey a directive that is discriminatory

This also includes participation in an employment discrimination proceeding, including filing a charge of employment discrimination, cooperating with an internal investigation of alleged discriminatory practices, or serving as a witness in an EEO investigation or litigation. However, even if an employee has filed a claim, that employee is not entitled to stop working.

When does retaliation occur?

Often, retaliation occurs when the lines between management and departments tasked to deal with complaints are blurred. In small companies lacking an external HR department, employees may find that the person who they are required to report harassment to is, in fact, the person doing the harassing. While complaints about a supervisor's behavior may (and indeed are expected to) result in a change in the supervisor's demeanor, if the changes result in more negative behavior rather than increased professionalism, you may have a case of harassment on your hands.

What should you do if you experience retaliation?

The best protection against retaliation is to document the behavior extensively. Make note of the occurrences of negative behavior by a supervisor directed towards you, including when and where the behavior occurred and if there were any witnesses. Document all interactions you have with supervisors who you suspect are engaging in retaliation, including the initial report of harassment. 

Through documentation and tenacity, it is possible to fight against retaliation. The Meyers Law Firm can help.