When it comes to personal retaliation, you may think of acts such as giving a friend the silent treatment over a rude remark or not inviting someone to your party because they didn’t invite you to theirs. 

These vengeful acts may be petty and cruel, but they’re not illegal. Yet when it comes to workplace retaliation, certain forms of employer retaliation are not only unethical, they’re illegal on both the federal and state level. 

That said, workplace retaliation can be a murky issue that’s difficult to clearly pin down without a specific set of facts. Indeed, you may have already committed retaliation against an employee without knowing it. To make things even more confusing, not all incidents of workplace retaliation are illegal; it all depends on the circumstances.

Since workplace retaliation is among the most frequently alleged bases for discrimination claims made to the Equal Equal Employment Opportunity Commission (EEOC), every employer should be familiar with what’s involved. While you should always discuss specific cases involving potential workplace retaliation with an experienced lawyer like us, we’ll cover some of the basics here. 

According to the EEOC, retaliation occurs when you punish an employee for engaging in a legally protected activity. The “protected activity” we’re talking about, however, is quite specific and generally involves making a complaint of discrimination or harassment, or participating in workplace investigations of alleged discrimination or harassment.

Punishment can be any form of adverse employment action, such as firing, layoffs, demotions, reduced pay, poor reviews, refusing promotion, transfers, and shift changes. Provided your negative action against the employee would deter a reasonable person in a similar situation from making a complaint, it’s illegal.

For example, say one of your employees complains they were passed over for promotion by their manager because of racial discrimination. If the manager subsequently fires that employee, and he or she can prove their termination was due to the complaint, that would be workplace retaliation.

What can make retaliation claims confusing is the fact that your employees are protected by law, even if his or her complaints eventually prove false. The laws are designed in this way to encourage employees to report alleged incidents of discrimination, harassment, and/or retaliation, rather than being intimidated or deterred by an employer’s ability to punish them.

And because retaliation can often be subtle and hard to detect, the courts consider all circumstances of the employee’s particular situation. For example, if you move an employee to the night shift shortly after he or she files a sexual harassment claim, that might not seem like an adverse action on first glance. But if the individual has young children and needs to work the day shift, it can be ruled retaliatory.

In addition to the federal laws, states can have their own unique laws that protect employees from retaliation for other reasons. Some states, for example, make it illegal to retaliate against employees who file for workers compensation and/or join a union. 

To help prevent workplace retaliation, you should develop a formal anti-retaliation policy for your company and have your managers strictly abide by it. We can assist you in evaluating federal and state laws to create a comprehensive policy for your particular work environment.

And if you are involved with a situation where retaliation may be an issue, you should consult with us before taking any action. We can help you navigate the complex laws involved and take the appropriate action if and when it’s called for. Contact our office to learn more. 

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