Retaliation is more than people think. It’s not just petty or mean; it’s often a subtle power play to exact revenge after an employee or applicant asserts their rights. Sexual harassment claims are often associated with retaliation, but there are many other situations.

When retaliation affects you, whether you experience it or witness it at your workplace, it’s a legal issue. You don’t have to stand by and hope it goes away. You need to stand up for yourself or support someone else by reporting violations.

Understand Federal and California Retaliation Laws

The U.S. Equal Employment Opportunity Commission (EEOC) prohibits companies with 15 or more employees from retaliating against employees and job applicants for complaining about or reporting employment discrimination. Employment discrimination covers unfair treatment or harassment because of your:

• Age (40+)
• Color
• Disability
• Genetic Information
• National Origin
• Race
• Religion
• Sex (Pregnancy, Gender, or Sexual Orientation)

It also includes being denied a workplace accommodation due to your disability or religious belief, and unnecessary questions about your genetic or medical information. For example, a prospective employer couldn’t ask you whether your parents had a history of schizophrenia during your interview.

The Pregnant Workers Fairness Act of 2022 added protections for pregnant workers. Under PWFA, employers must provide reasonable accommodations to pregnant employees. For example, a pregnant cashier could be given a stool to sit on while behind the cash register.

California’s Civil Rights Department bans discrimination in all aspects of business, including:

• Applications, Screening Processes, and Interviews
• Advertising
• Hiring, Promotions, Transfers, Layoffs, and Terminations
• Wages
• Working Conditions
• Training and Apprenticeships
• Union Activities

One of the biggest differences is that workplace discrimination, harassment, and retaliation laws apply to any company with 5 or more employees. This means most workers and job applicants have protections, even at small companies.

The Definition and Examples of Protected Activities

Protected activities are situations in which you assert your EEO rights. Both the victim and anyone who reports violations of another person’s rights are protected from retaliation. 

If you’re a union steward, you can file a grievance on behalf of a union employee. Witnesses to harassment can report violations to management or HR. Retaliation can occur against anyone who reports a violation of employment laws or engages in protected activities.

Protected activities include:

• Answering Questions During an Employer Harassment Investigation
• Asking About Missed Lunch/Dinner Breaks or Unpaid Overtime
• Controlling or Directing Political Activities
• Discussing Wages
• Filing or Being a Witness in EEO Complaints, Lawsuits, or Investigations
• Intervening to Protect a Coworker
• Refusing to Follow Orders Related to Illegal or Discriminatory Actions
• Reporting Minimum Wage Violations
• Reporting OSHA Violations or Unsafe Working Conditions
• Requesting Accommodations
• Resisting Sexual Advances
• Talking to a Supervisor or Manager About Harassment or Employment Discrimination
• Using Paid Family Leave or CFRA

What Retaliation Looks Like

Retaliation isn’t always direct. It can be subtle. While some owners or managers might respond with “You’re Fired,” retaliation is often harder to determine. Here’s what retaliatory behavior looks like.

• Assignment Changes: Your boss suddenly takes away some of your favorite job duties and leaves you with only grunt work that no one likes to do.
• Exclusions From Company Gatherings, Meetings, or Training Sessions: You used to attend production meetings, but you’re suddenly told your participation is no longer necessary.
• Hostile Environment: Your coworkers or managers ignore you, bully you, or scrutinize everything you do, making it hard to do your job.
• Loss of Benefits: Your company reduces your benefits, but no one else loses theirs.
• Negative Performance Reviews After Years of Positive Reviews: You’ve always been told your performance is outstanding, and you haven’t changed what you do or how you do things. Your latest performance review is poor, and there’s no explanation for the drop.
• Relocation to Another Location: Your company decides that you, and only you, must transfer to an office an hour from your home.
• Removal of Employee Privileges: If you had a company car and it’s suddenly taken from you, it could be retaliation.
• Shift Changes: You’ve been scheduled with weekends off for years, but you’re suddenly finding your hours cut, and you’re the only one assigned to work on weekends now.
• Transfers to a Less Popular Shift or Department: You’re told you’re moving from first shift to third shift. Or, you are being moved from helping customers to cleaning duties.

Here are a few real-life situations where a worker faced retaliation.

1. The Director of Equity for Baltimore’s Department of Public Works lost her job after reporting several harassment complaints at the city’s wastewater treatment plant. Women were forced to go to another building to use a restroom, while men were allowed to use the site’s bathrooms. Teens were paid drastically less than adults. When workers spoke up, they faced retaliation.
2. A Michigan State University assistant VP faced retaliation after reporting sexual harassment. After reporting the harassment, she met with the university’s Vice President of University Advancement and was reprimanded for not first resolving the matter internally. After additional complaints, she lost her job with the university, citing “at-will employment status.”
3. A federal jury awarded two Texas DPS workers over $1.6 million in damages for racial harassment and retaliation. Troopers Sams and McPherson worked for the Department of Public Safety and faced racial harassment for months. When they complained, they experienced retaliation. McPherson lost a promotion to a less experienced colleague and was given fewer days off than other employees.

Know Your Rights as an Employee

As an employer or job applicant, it’s essential that you understand your rights. Mistreatment in the workplace or when applying for a job isn’t legal or acceptable if your rights are violated. You shouldn’t lose your job or be treated unfairly after courageously speaking up for yourself or someone else.

Collect as much evidence as you can and file a complaint. Keep copies of emails, store them on a private cloud server, keep journals with the dates and times of the retaliation you experienced, and get a list of witnesses who saw what happened.

It’s best to work with a California employment law expert, such as the knowledgeable attorneys at Shegerian & Conniff. Discrimination, harassment, and retaliation laws are complex and change regularly. New laws are added, and older laws are amended. When you work with an attorney, you gain up-to-date expertise to support you through the lengthy process.

Call our office or complete the online form to schedule a free consultation. Retaliation isn’t something you should ignore. When you do, other victims follow. Instead, stand up for your rights and let us help you get fair treatment and protect others from similar experiences with your employer.