Most people know that laws exist to protect employees from discrimination and harassment in the workplace. However, many people don’t know these same laws also protect employees from workplace retaliation.
Retaliation — when employers punish employees for making discrimination or harassment complaints, or participating in workplace investigations — is illegal.
What Is Workplace Retaliation?
Retaliation occurs when an employer punishes an employee for engaging in legally protected activity. Retaliation can include any negative job action, such as demotion, discipline, firing, salary reduction, or job or shift reassignment. But retaliation can also be more subtle.
Sometimes it’s clear that an employer’s action is retaliatory — for instance, when an employee is fired — but sometimes it’s not. Employees must consider the circumstances of the situation. For example, a change in job shift may not be objectionable to a lot of employees, but it could be very detrimental to a parent with young children and a less flexible schedule.
If an employer’s adverse action would deter or influence a reasonable person in the situation from making a complaint, it constitutes illegal retaliation.
Is Your Employer Retaliating Against You?
It can be hard to tell sometimes if an employer is retaliating against an employee. For example, if someone complains about a supervisor’s harassing conduct, the supervisor’s attitude and demeanor may change. But if the change means he acts more professionally towards that employee, that isn’t retaliation even if the supervisor isn’t as friendly as he once was. Only changes that have an adverse effect on employment are retaliatory.
On the other hand, if something clearly negative happens shortly after an employee makes a complaint — like firing or demotion — they’ll have good reason to be suspicious.
Remember, not every retaliatory act is obvious. It may come in the form of an unexpected and unfair poor performance review, the boss micromanaging everything you do, or sudden exclusion from staff meetings or training opportunities.
What To Do If You Suspect Workplace Retaliation
If you suspect your employer is retaliating against you, step one is to talk to your supervisor or a human resources representative about the reasons for these negative and/or adverse actions.
It’s fair to ask specific questions. Your employer may have a perfectly reasonable explanation — you’ve been moved to the day shift because there’s an opening, and that’s what you’d said you always wanted, or your poor performance review may be based on documented problems you’d been told of previously.
If your employer can’t provide a legitimate explanation, express your concern that you are being retaliated against. Be prepared for your employer to deny it — and in truth, employers can retaliate without realizing it. You should point out that the negative action took place only after you complained, and ask that it stop immediately.
If an employer isn’t willing to admit its wrongdoing or correct a problem, employees may have to take their concerns to the Equal Employment Opportunity Commission (EEOC) or their state’s fair employment agency.
Building A Case For Retaliation
If an employee suspects retaliation and the employer won’t correct the problem, they will need to show a link between their complaint (or other behavior believed to have triggered the retaliation), and the employer’s retaliatory behavior. The more evidence an employee has in support of their claim, the better.
The best way to build a case is for employees to document both their own actions/behavior, as well as the actions of those they are accusing of retaliation. Be as specific as possible, and if need be, consult with an attorney.