I Think I Am a Victim of Retaliation in the Workplace. What Steps Should I Take Next?

November 27, 2018

Title VII of the Civil Rights Act of 1964 states that employers are prohibited from discrimination in the workplace based on several protected categories. Under that same law, employers are prohibited from retaliating against their employees as well. When an employer fires, demotes or refuses to hire a person as a result of that employees complaints, the employer can be held accountable for violating Title VII.

The purpose of this blog is to make you familiar with retaliation law in the United States and what steps you can take to rectify it.

 Definition and Elements of Retaliation

Retaliation occurs when an employer or supervisor takes adverse action against an employee for voicing a complaint or participating in an investigation.

It is strictly illegal for an employer to retaliate against any of their employees or applicants for employment because of their complaints to the employers illegal conduct or because they cooperate in an investigation against the employer.

It is not uncommon for cases of harassment to give rise to retaliation cases. Often times employers against whom a claim of discrimination or harassment have been filed take adverse action against any individuals who opposed the unlawful acts or assisted in an investigation of those unlawful acts.

It is important to note, even though these two claims (discrimination and retaliation) arise together, the success of the retaliation claim is not contingent on the success of the discrimination claim. This means that a retaliation claim can still be successful even though the discrimination claim it stemmed from was not.

Establishing a Retaliation Claim

While employees are protected by law from being retaliated against, proving retaliation can be difficulty as most cases are based on circumstantial evidence. In order to establish a retaliation claim, an employee must establish three elements:

  • Employee engages in protected activity;
  • Adverse Action taken against employee;
  • Causal link between protected activity and adverse action.

Protected Activity

The EEOC states, “The EEO laws prohibit punishing job applicants or employees for asserting their rights to be free from employment discrimination including harassment.  Asserting these EEO rights is called “protected activity,” and it can take many forms.  For example, it is unlawful to retaliate against applicants or employees for:

  • filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
  • communicating with a supervisor or manager about employment discrimination, including harassment
  • answering questions during an employer investigation of alleged harassment
  • refusing to follow orders that would result in discrimination
  • resisting sexual advances, or intervening to protect others
  • requesting accommodation of a disability or for a religious practice
  • asking managers or co-workers about salary information to uncover potentially discriminatory wages.”

See: https://www.eeoc.gov/laws/types/retaliation.cfm

This list is not exhaustive but provides some examples of what constitutes engaging in protected activity.

Adverse Action

An employee must also be able to show that they suffered some sort of adverse action at the hands of the employer. The most common forms of adverse actions are termination, harassment or a demotion and a pay cut. Adverse action can also be any action that  would be grounds for a civil or criminal charge.

Causal Link

Lastly, an employee must be able to show that there is a causal link between the protected activity they engaged in and the adverse action taken by their employer. The employee must be able to provide sort of evidence, whether direct or circumstantial, that shows  a connection between their action and that of the employers.