Many workers’ lawsuits against employers involve claims of retaliation. For instance, a lawsuit may allege sexual harassment or racial discrimination, and one of the claims in the lawsuit alleges unlawful retaliation.
In this blog post, we will explore what retaliation means, how to spot it and what protections workers have against it.
What is retaliation?
Generally, retaliation refers to any adverse action an employer takes against an employee because the employee engaged in protected activity. There is a variety of activities that are protected under Federal and state laws, including:
- Reporting unsafe working conditions
- Requesting or using leave time under the Family Medical Leave Act
- Increasing scrutiny of the employee
- Reporting sexual harassment or resisting sexual advances
- Reporting unlawful discrimination
- Asking for a reasonable accommodation due to disability or religious practice
Adverse actions can include such things as:
- Terminating employment
- Demoting the employee, reducing their hours and/or pay, or transferring them to a less desirable location or position
- Assigning more difficult duties to the employee, or withdrawing privileges the employee had enjoyed
- Disciplining the employee, giving them an unfairly poor review of their work, yelling at them or physically abusing them
- Threatening to report the employee to law enforcement
What is the motive?
The motive for the adverse action is important: An employer generally has the right to fire employees, but they can’t fire an employee in retaliation for the employee reporting sexual harassment.
This question of motive can raise difficult issues in employment law claims. The employee must provide evidence that the adverse action happened because of the protected activity. For this they need evidence.
The timing of the adverse action can be evidence of retaliation if, for instance, the worker was fired the day after they reported unlawful discrimination. Any statements the employer made about the protected activity or the adverse action can also be evidence.
Collecting this evidence can be difficult, but it can be crucial to a worker’s retaliation claim. It’s wise for workers to consult with professionals about how they should gather evidence to make a retaliation claim.