Retaliation in the Workplace: How to Deal with It Legally - Shegerian Law

The workplace is a venue for mutual respect, teamwork, and growth among people from all walks of life. But, unique minds with different priorities and strategies can cause tensions within the office. Not to mention the fast-paced and high-pressure demands that come with work responsibilities. 

Misunderstandings and frustration can arise between coworkers. A proper conversation led by an HR representative or their work supervisor can resolve these issues. However, what can employees do if they feel their employer retaliates against them?

Workplace retaliation is the act of employers terminating, suspending, or otherwise penalizing employees for legally exercising their workers’ rights and taking part in protected activities. 

Zippia reports that workplace retaliation is one of the most common types of discrimination, with 34,332 reported claims—accounting for 56% of the total 61,331 filed discrimination charges in 2021. 

Supervisors, HR staff, and employees must be aware of retaliation in the workplace and its impacts to ensure actions are taken to prevent inappropriate instances in the future. Study the infographic below to take the first step in providing a safe and respectful work environment.

Retaliation in the Workplace: How to Deal with It Legally Infographic

What is Retaliation in the Workplace?

Workplace retaliation happens when an employer, either directly or through a manager or HR, takes negative actions that cause adverse consequences to a job applicant or an employee in response to the employee taking part in a protected activity. . 

Along with harassment, the U.S. Department of the Interior defines retaliation in the workplace to be behavioral threats to an equal workplace. It’s important to note the difference between the terms to avoid inappropriate and offensive conduct in the office.

Harassment is pervasive, unwelcome conduct based on sensitive, personal information that can create an unsafe work environment. Retaliation, however, is an employer’s act to deter an employee from exercising their rights and participating in activities protected by federal laws and regulations. 

Not all negative actions are grounds for a workplace retaliation case. An employee involved in a retaliation incident may still be lawfully dismissed if their complaint is unfounded or the employer makes the case that their actions are solely based on legal causes for termination.

You must consider the facts of the situation to confirm if an action taken by the employer is retaliation against an employee’s engagement in a protected activity.

What are “Protected Activities”?

Federal laws and regulations, as enforced by the U.S. Equal Employment Opportunities Commission (EEOC), outline a job applicant or employee’s rights to be free from employment discrimination. Protected activities are procedures and actions employees can take to assert these rights

Below are some examples of protected activities.

1. Informing employers of workplace discrimination

Employees may seek and consult their immediate supervisor or an HR representative of the company when they feel unwelcome or unwanted in the workplace by coworkers, senior employees, or team leaders because of their race, gender, disability, or sexual orientation.  

Employees should be able to respectfully talk about their experience to find a solution to the discrimination without adverse repercussions. 

2. Not following orders that can cause discrimination

Employees can refuse orders by senior employees or managers that can be considered discriminatory acts against them or others. Discrimination entails the differential treatment an individual may receive based on their gender, race, color, sexual identity, age, disability, or other personal information. 

3. Resisting sexual advances or intervening to protect others

Equal Employment Opportunity (EEO) laws forbid employers from discriminating against workers who reject sexual solicitations made by any individual from the workplace. Individuals often offer these sexual advances to intimidate or in exchange for work favors or employment promotions. 

If an employee experiences sexual harassment or witnesses others experiencing sexual harassment in the workplace they should be able to consult immediate supervisors without the risk of adverse repercussions. 

4. Requesting accommodation of a disability or for a religious practice

It’s within an employee’s rights to seek additional support to meet their disability or religious needs. Individuals with disabilities, both mental and physical, should be able to ask for necessary accommodations.

 For physically disabled employees, ramps and or elevators are suitable accommodations. For employees with meal restrictions due to religious beliefs, a suitable accommodation would be offering menu options to ensure religious inclusivity in the workplace.

5. Inquiring about compensation information

Employees may ask their coworkers or supervisors about their salary, wages, and benefits to detect discriminatory pay. Studies show significant pay gaps based on gender, race, ethnicity, age, and sexual orientation, with women of color in the U.S. topping the list of the most severe pay gaps. 

6. Filing or being a witness in EEO cases

EEO laws protect employees involved in filing or being witnesses to EEO complaints, charges, and investigations. Whether addressed to their current or previous employer, these cases should not hinder a worker’s right to a safe and comfortable work environment. 

What are the Signs of Workplace Retaliation?

It can be challenging to tell if an employer’s action is a retaliatory step against an employee. Retaliation in the workplace can take different forms—some subtle, some not.

This is not to say an employer can’t take disciplinary action against an employee. However, employers must ensure that the corrective measures are appropriately communicated and grounded in non-retaliatory and non-discriminatory reasons to the employee. 

Remember that workplace retaliation is not just harassment in the form of an unjust termination. You must consider the facts of the situation to confirm if an action taken by the employer is retaliation for an employee’s engagement in a protected activity.

Here are more unjust ways that employers can retaliate against an employee:

7. Withholding a raise or promotion

Career development is a priority of every employee. Retaliation in the workplace can take the form of an employer refusing to provide opportunities for advancement, whether manifested in a raise or a promotion, to a well-performing employee who has previously filed a harassment case against a manager.

8. Unreasonable changes to work duties 

An employee getting reassigned to another work duty below their abilities can be seen as retaliation. For example, Employee A, a gym coach, finds that they have been assigned to maintenance duties a week after their EEO claim against their manager. This can have a detrimental impact on their pay and resources.

9. Getting the ‘cold shoulder’ treatment from coworkers and managers

Employees who experience discrimination in the workplace don’t often report these incidents due to the fear of being the latest office gossip or colleagues isolating them. The cold shoulder treatment also means being left out of critical departmental meetings, making it challenging to complete office tasks. 

10. Reducing employees’ salary, wages, and benefits

When facing cash flow problems, low national economic growth, or recessions, cutting employees’ salaries may be more favorable than shutting down the whole business. However, suppose a productive employee is notified of a sudden pay cut after being involved in a protected activity. 

For instance the employee recently reported fellow co-workers sharing discriminatory jokes in the office to HR. In that case, they have the right to be suspicious. 

11. Threats of physical and mental harm 

Workplace retaliation can also be a hostile action against an employee—whether through intimidation, verbal threat, or direct harmful actions.

Suppose Employee A is a construction worker constantly under the sun’s heat for 8 hours daily. Their manager hears them complaining about work with a colleague. During lunch, the manager limits the drinkable water supply for the employees in response to the complaint. This can be a retaliatory action against the employee. 

12. Unjustified low or negative performance reviews

There can be cases wherein the circumstances of a situation determine if the employer’s action is a negative response to a worker’s rights. 

While low-performance reviews can motivate others to work harder, a probationary employee getting a negative review after complaining to HR about workplace gossip can be detrimental to their career progress and considered retaliation. 

How to Deal with Workplace Retaliation

More than recognizing retaliation in the workplace, managers, HR, and employees must be educated on how to address these incidents. You must consider the facts of the situation to confirm if an action taken by the employer is justified or if the employer aims to retaliate against an employee’s engagement in a protected activity.

A. When you suspect retaliation in the workplace

1. Talk to your supervisor or HR representative

Don’t hesitate to approach an HR or management representative to discuss your experiences. Directly ask questions about the adverse action in a professional, respectful manner. Your employer may have reasonable grounds for such actions. 

For example, a supervisor may legally dismiss an employee due to a longstanding history of documented low performance – not just because the manager overhears the employee’s water cooler conversation with a colleague who criticizes the office leadership. 

2. Voice your concern about being retaliated against

If the employer cannot provide a legal and reasonable explanation for the adverse action, voice your concerns about being a victim of workplace retaliation. It may be the case that the employer is unintentionally retaliating. 

Make the case that the negative experience started only after you complained and respectfully ask that it stops immediately. 

3. Consult the EEOC or Fair Employment Practices Agencies (FEPAs)

Many states and local jurisdictions have anti-discrimination laws and regulations. The EEOC and FEPAs enforce these laws at the national and regional capacity, respectively. It must be noted that any records with a FEPA will automatically be dual-filed to the EEOC. 

Even after you have filed a complaint with a state agency it is advised that you consider hiring your own employment attorney. 

B.   When you want to build a case against retaliation

1. Show a link between your complaint and the employer’s retaliatory behavior

Suppose you’ve completed the professional procedures to address an adverse action concerning workplace retaliation, and you suspect that your employer won’t settle the issue. You’ll need to secure your facts before taking the necessary measures.

Exhibit and prove a link between your action that you believed triggered the retaliation and your employer’s retaliatory action. 

Show the connection of how Event A caused Event B. For example, your boss fired you for not being a ‘team player’ a week after you filed a sexual harassment case against them. Event A, your sexual harassment filing, caused your unjustified termination, which is Event B. It is important to have a workplace retaliation attorney by your side to help you navigate this process.

2. Provide evidence that documents the retaliation

Proving retaliation in the workplace involves three things: an employee engaging in a protected activity in good faith, the same employee being subject to an employer’s negative action that has adverse consequences on their employment, and a causal relationship between the two events.

Keep track of documents and events before your complaint and the suspected workplace retaliation. For example, your employer’s negative reviews after a complaint can be argued with records of past employee performance awards and previous emails of how they are delighted with your work. 

3. Consult with an employment lawyer for legal advice

Consider hiring an employment lawyer who can explain the strengths and weaknesses of your case, what compensation you are likely to receive, and what necessary evidence you’ll need to take legal action against workplace retaliation. 

The corrective solutions you’ll receive will depend entirely on the workers’ legal rights involved in the case and the harm caused by an employer’s conduct. Especially in the case where an employee loses a significant amount of wages and employment opportunities due to retaliation in the workplace, hiring a reliable lawyer can make your claims stronger. 

Take Legal Action Today 

Learn more about your legal options to protect your legal employment rights against possible job concerns, such as acts of workplace retaliation. Take the necessary steps to create a work environment free from discrimination and consult with our lawyers today.

Disclaimer: None of the aforementioned information should be construed as legal advice. Likewise, contacting us via our website does not constitute an attorney-client relationship. Please consult with a competent and qualified attorney to discuss your specific situation before taking action on your own.

Manuela Varela

Relations Manager

Manuela Varela has been with Shegerian & Associates since August 2022. She is responsible for outreach and marketing on behalf of the firm and manages relationships between firms and referring attorneys. She is also responsible for developing business opportunities and affiliations. Manuela graduated from Loyola Marymount University with a degree in Economics and Political Science.