What is Retaliation?
Retaliation takes place when an employee engages in “protected activity” and his or her employer takes “adverse action” against the employee because of that activity.
An employee engages in protected activity when he or she objects to, or opposes, unlawful conduct such as employment discrimination. For example, if an employee complains that an employer denied a promotion based on the employee’s disability, that constitutes protected activity. If the employer transfers the employee to a less desirable job as a result of the complaint, that would constitute an adverse action and therefore, retaliation.
Adverse actions include denial of promotion, failure to hire, denial or reduction of job benefits, demotion, providing lower performance evaluations, job transfers, changing schedules, and suspension or termination of employment. Verbal or physical abuse can also be adverse actions, as well as threats designed to deter participation in protected activity, such as threatening to report immigration status or to contact the police. Retaliation means any adverse action taken by an employer that might “deter a reasonable person from engaging in protected activity.”
An employer is not only prohibited from taking action against the individual who complains about unlawful conduct or files a discrimination complaint. The employer also cannot retaliate against an employee who participates in a discrimination claim by another employee, or for being as a witness in an investigation. Retaliation can also include actions by employers outside of the work place that affect the employee or a member of the employee’s family in a negative way.
How does the law protect employees against retaliation?
Many statutes contain anti-retaliation provisions. Equal Employment Opportunity (EEO) federal discrimination laws prohibit discrimination based on race, color, sex, religion, national origin, age, disability, and genetic information. These laws also prohibit retaliation against people who oppose unlawful discrimination. State discrimination statutes, including New Jersey’s Law Against Discrimination and Pennsylvania’s Human Relations Act, also provide protection against retaliation to employees.
In addition to discrimination statutes, other federal and state laws prohibit retaliation against employees for exercising their rights through protected activity. For example, employees are protected against retaliation for complaining about unlawful conduct under whistleblower statutes, wage and hour laws, workplace safety laws, and family leave laws.
Why is retaliation important?
The statutory prohibitions against retaliation enable employees to object to discriminatory or otherwise unlawful conduct in the workplace without fear of job loss or other actions that negatively affect their jobs.
In fact, if an employee’s original discrimination claim is reasonable but fails to establish that the law was violated – the employee’s retaliation claim may continue as a separate violation of the law. The retaliation claim can result in a separate discrimination finding.
For example, recently the EEOC found retaliation occurred against an employee when her employer denied her a promotion after she filed several unsuccessful EEO complaints. The employee’s supervisor later placed information about the EEO complaints in the employee’s file. Further, when contacted for reference checks, the supervisor stated that the employee had filed the complaints. The employer’s actions were taken against the employee for engaging in statutory protected activity and were thus found to be retaliatory.
If an employee proves that his or her employer engaged in retaliation, compensatory and punitive damages may be available as well as back pay, front pay, and reinstatement. Each situation is different and whether retaliation occurred is determined on a case-by-case basis.
If you believe that your employer retaliated against you for asserting your rights, you should contact an experienced employment lawyer. Murphy Law Group focuses exclusively on employment law and represents employees in Pennsylvania and New Jersey. Email us at firstname.lastname@example.org or call (267) 273-1054 for a free consultation.