Retaliation at Work and How to Recognize it

Fear of retaliation at work prevents many employees from defending themselves against the abusive and illegal actions of their employers.   Many employees would rather put up with discrimination, a hostile work environment, or accept being misclassified as an independent contractor or salaried employee, than risk alienating an employer and possibly even losing their jobs by asserting their rights.

A number of factors can make the decision to stand up to illegal employment practices a difficult one, but an employee should never be intimidated against taking action by the fear of retaliation at work. A series of federal, state, and local laws exist to protect employees against any adverse action taken against them for engaging in a protected activity, such as filing a lawsuit or charge of discrimination with the EEOC, and the scope of this protection is broader than many realize.

It may seem common sense that an employer cannot fire an employee for filing a lawsuit. But many are not aware that the legal protection of employees extends much further. In fact, any good faith complaint of unlawful employment practices, such as harassment, discrimination, failure to provide accommodations for a disability, or failure to provide overtime, is considered protected. This includes internal complaints made directly to an employer or the company’s HR department. Complaining to an external state or federal agency, such as the Department of Labor or the EEOC, is also conduct that is protected from retaliation at work.

Retaliation at Work is Not Limited to Termination

Perhaps more important than the definition of protected conduct is the definition of retaliation itself. Many employees simply don’t realize that any form of retaliation at work is illegal and actionable—it’s not necessary that an employee lose her job. As the Supreme Court has recently held, if an adverse action is severe enough that it would have “dissuaded a reasonable worker from making or supporting a charge of discrimination,??? that act is sufficient to support a retaliation claim.

Pamela Wolf surveyed developments in case law on the issue, and she notes that the standard for retaliation at work is continuing to loosen. For instance, screaming and threats—even without any further adverse action—may be enough to constitute retaliation.  The simple temporal proximity of the adverse action to the protected conduct may be enough to get to trial, which is especially significant, as bad intent can often be very difficult to prove. Finally, the Supreme Court recently found that you can now bring a claim for retaliation even if you are not the person engaged in protected conduct, provided you are associated with that person. In that case, Thompson v. North Am. Stainless,a worker who was fired after his fiancé complained about sexual harassment had a claim for retaliation at work even though he made no complaint himself.

Employees too often feel powerless to challenge hostile work environments, harassment, or the failure to pay overtime. Workers understandably fear being cast into a difficult job market and conclude that the devil they know is better than the devil they don’t. An extensive legal framework exists, however, to protect employees against the very retaliation they might fear, and a deeper understanding of those protections may make employees more comfortable standing up to abusive practices.

Author Photo

Robert Ottinger, Esq.

Robert Ottinger is an employment attorney who focuses on representing executives and employees in employment disputes. Before starting his firm, Robert slugged it out in courtrooms trying cases for the government. Robert served as a Deputy Attorney General for the California Department of Justice in Los Angeles and then as Assistant Attorney General for the New York Attorney General’s Office in Manhattan.

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