Workplace Retaliation

Retaliation is a frequent concern for employees who speak out against discriminatory treatment.  There are several laws that protect employees who speak out, including Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Fair Labor Standards Act. 

To show that you've been retaliated against, you must show that you engaged in "protected activity," that you suffered some type of "adverse action," and that a connection exists between the protected activity and the adverse action.  What constitutes "protected activity" ranges from statute to statute, but generally speaking employees who complain both formally and informally either to a supervisor at the workplace or to an agency (like the EEOC) are protected.  In addition, employees who participate in an investigation (e.g., a coworker experiences harassment and you testify about it), are also protected.  "Adverse actions" can take several forms, including demotions, transfers, and terminations.  The Supreme Court has said that anything that is "materially adverse" to an employee and discourages that person from making a complaint is sufficient to constitute an adverse employment action. 

Once you've shown the initial elements, your employer has the opportunity to state a legitimate, nondiscriminatory reason for its actions.  In other words, the employer gets to share its side of the story.  In order to ultimately prevail, you must show that the employer acted with the intent to retaliate against you. 

Workplace retaliation is the most common type of discrimination alleged, and it made up 45% of the 92,641 charges received by the EEOC in 2015.  Contact us if you've been retaliated against for speaking out.