Harassment Employee Rights Against Workplace Retaliation by Employers

  1. Workplace Retaliation is defined as harassment and discrimination by your employer as a result of an investigation prompted by an employee’s complaint at work.

    Although many employees know that there are laws in place which protect them from discrimination or harassment on many grounds, there are also many employees who do not realize that these same laws protect them from retaliation by their boss or employer. An employer cannot punish an employee for making a legitimate complaint about harassment or discrimination or for merely being involved in a workplace investigation. Punishment does not only mean just being fired or being demoted - it can also include being refused a raise, missing out on training opportunities, promotions or being refused a transfer which would be more favorable.

    What Is Meant By Retaliation?

    If an employee is punished by an employer for taking part in an activity which is legally protected, then retaliation may have taken place. Any negative job action such as discipline, demotion, wage cuts, firing or job reassignment would also be included under the definition of retaliation.

    Retaliatory actions of an employer can be obvious, such as where an employee is fired immediately after being a witness for a plaintiff to harassment on the job. But there are other times when it is more subtle. In these situations the entire circumstances must be examined according to the U.S. Supreme Court. For instance, it may not be problematic for all employees to be transferred or for their shift to be changed. However, in the case of a individual employee with young children, such a change could have a huge negative impact. Essentially, if the actions of the employer would prevent a reasonable person in the same situation from making a complaint then it amounts to illegal retaliation.

    When Is It Illegal to Retaliate?

    If an employee makes a complaint regarding discrimination or harassment at work, either to a department or person within their workplace or to an external federal agency such as the EEOC (Equal Employment Opportunity Commission), then they are protected from retaliation. As long as the complaint was made in good faith, the employee is protected from retaliation even if the complaint is proved to be unfounded. (Being unable to prove an act of harassment took place is different from making a bad faith complaint about harassment that probably did not take place.)

    Any employee who acts as a witness or co-operates with an EEOC investigation is also protected under this law. In a recent U.S. Supreme Court case, the court ruled that witnesses of internal investigations are also protected. There are other federal laws in place too which protect “whistleblowers” such as those who make complaints about unsafe working conditions. In addition, some states have enacted their own laws which protect employees from retaliation by employers.

    How Can You Tell If Your Employer is Guilty of Retaliation?

    It is not always easy to determine whether your employer is actually retaliating against you. For instance, you complain that your boss is too “friendly” towards you and then he changes his attitude and acts more at a distance but still with professional conduct. You cannot accuse him of retaliation even though his attitude has changed as a result of the complaint. It is only considered to be retaliation if the change has a significant unfavorable effect on your employment.

    If you experience a reaction that has significant negative impact soon after you have made a complaint - such as being fired or demoted - then it would seem you have a reasonable justification for suspecting retaliation has occurred. Other acts which don’t directly affect your employment status could also qualify as retaliation in the workplace. Your employer could be guilty of unreasonably micromanaging your work, giving you a poor performance evaluation without reasonable justification or by excluding you from meetings of the kind which you have previously and regularly attended.

    What Can You Do If You Think Your Employer is Guilty of Retaliation?

    If you think that your employer might be retaliating against you, then the first thing you would want to consider is speaking to a direct supervisor or a member of your human resources department. You should explain why you suspect retaliation and you can ask any questions that you may have. There could be some valid reasons for actions taken by your employer, for example, a poor review could be the result of some previous problems of which you were already aware. Perhaps a sudden change in the time of your work shift might be that you had previously expressed an interest in working a day shift instead of at night or vice versa.

    It is certainly possible that your employer will deny any accusations you may make. Sometimes the reason for the denial might not even be malicious – people sometimes don’t realize how they are acting and an employer might not even realize their actions might constitute retaliation. But the point is that it is up to you to make your employer know – to put them on notice that you are upset about an action that you consider retaliatory.

    If you feel that you have not received a satisfactory response from your employer after expressing your concerns, you can take your disappointment one step further. You can contact the EEOC (Equal Employment Opportunity Commission) or your state’s department of labor, for example, the New York Department of Labor.

    Another good idea is to contact your state or local Fair Employment Practices Agency (“FEPA”). Most states, as well as some cities and counties, have their own private laws that prohibit discrimination against employees. They also have set up agencies responsible for enforcing these anti-discrimination laws. These state and local agencies are known as Fair Employment Practices Agencies or "FEPA" for short. As would be expected, the laws that FEPAs enforce are similar to the laws that the EEOC enforces. At times, FEPA agencies can enforce laws that have greater work protection from discrimination, including discrimination due to marital status, having children or due to sexual orientation. It is important to make sure that you speak to a FEPA or to your lawyer as early as possible in order to determine the deadlines for filing a charge as well as what the different standards are for determining whether you will qualify for protection under those laws.

    How to Build a Case of Retaliation

    If you think your employer is retaliating against you and nothing changes after you have made your complaint, then it is up to you to link this behavior to the original incident which caused the retaliation in the first place. You will have a better case if you get as much evidence as possible.

    You need to document everything relating to the behavior which you feel is retaliatory. And gather together any documentation that you have prior to when you made your original complaint such as anything that showed that your employer was happy with your work before you made a complaint.

    Michael Wechsler

    Michael Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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