The American enterprise is a complex institution: it's geared toward employee productivity, but is undercut by "workplace harassment" and other issues that can turn it into an unhealthy/unsafe environment for workers. For this reason, employees have certain legal protections from the U.S. Equal Employment Opportunity Commission (EEOC) and other agencies from hostile and inappropriate behaviors at the office. But what happens when an employee exercises their legal right to report such violations -- and their employer punishes them for it?
It is illegal for employers to retaliate against employees for engaging in "protected activity" of filing unlawful discrimination/ sexual harassment/hostile work environment claim with the HR, a state agency or a federal watchdog organization. Conversely, the wronged employee has legal recourse in fighting it. Read on to find out what you can do if you find yourself the target of unlawful retaliation in the workplace settlements.
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Workplace Retaliation Defined
"Retaliation" (also known as "reprisal") is a form of revenge/counterattack for perceived "wrongs".
Unlawful retaliation at the place of work happens when employers take adverse action against employees, job applicants, or a former employee for engaging in "protected activity". Here, protected activity means exercising one's legal right to lodge a formal complaint (or participate as a witness it its investigation) in instances of inappropriate/unsafe behaviors at the office (such as discrimination on the basis of protected traits such as race, gender, disability, sexual orientation, national origin, genetic information, etc.)
Judging by the recent jury verdicts for court cases involving work retaliation claims, even when an employee had made an employment discrimination complaint that was ruled to be completely unfounded, as long as the complaint was determined to have been made in good faith -- on a reasonable belief that discrimination had been committed, the complainant remains legally protected from retaliation from their superiors.
When Superiors Retaliate Against Subordinates
Retaliation by an employer, by definition must come from one's "superior" and can take many forms, including:
- Failure to hire
- Verbal or physical abuse
- Threats/acting on threats to report the employee to authorities (e.g. "calling immigration" on a subordinate)
- Relocation to someplace inconvenient
- Discrimination against employee's family in business dealings (for example, pull out of a contract with the employee's sibling to spite them)
- Getting switched to an undesirable schedule that conflicts with the employee's family responsibilities
- Unfavorable work recommendation with potential employers
- Unfair performance reviews
- Increased scrutiny/surveillance
"Retaliation" Must Be Evident
Not all cases of work retaliation are perfectly obvious or easily provable. It can be challenging to separate circumstantial "unpleasantness" at work from being personally singled out and targeted by management with malicious intent.
The EEOC specifies that engaging in protected activity "does not shield an employee from all discipline or discharge" and that " employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences".
An employee has a reasonable cause for suspicion if they got fired shortly after filing an employment discrimination complaint -- or suddenly found themselves scrutinized, micromanaged and left out of team meetings and activities: a dramatic shift from how they had been treated before filing the complaint. However, if an employee didn't get a highly competitive promotion months after filing a sexual harassment complaint with the HR, it may be difficult to establish retaliatory conduct on this singular fact alone, as the employee may have simply lost the promotion to someone objectively better qualified for the job. In legal cases, correlation does not equal causation without evidence.
Keep in mind also that not all changes count as illegal "retaliation". For example, after filing a harassment complaint, the employee may experience a more reserved, formal "attitude" from their supervisor: however, the changes that count in a retaliation case are only those that have an adverse effect on one's employment.
Laws Against Employer Retaliation
Employment law across the US forbids employers from taking negative action against their employees for exercising their legally protected rights to complain/protest against prohibited practices and behaviors, as well as for cooperating with an investigation into such a complaint.
On the federal law level, retaliatory behavior falls under "employment discrimination" as defined by by Title VII of the Civil Rights Act of 1964, likewise enforced by the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).
Certain retaliatory conduct is also under the protections of the following pieces of federal legislature:
- The Fair Labor Standards Act (protects employees who file claims for back pay)
- The Occupational Safety and Health Act (OSHA) (protection for whistleblowers on health and safety violations)
- The Family and Medical Leave Act
- The National Labor Relations Act (protects union organizing activity)
- The Equal Pay Act of 1963 (EPA)
Some US states have state laws that recognize retaliation claims, if those claims are rooted in violations of "public policy", which include allegedly illegal acts, environmental hazards, violations of safety regulations, and violations of internal business protocol.
U.S. Equal Employment Opportunity Commission
The EEOC is the independent federal agency protecting equal opportunity in employment by:
- enforcing administrative and judicial civil rights laws with businesses
- providing education and technical assistance to the potential victims of unfair employment practices
The EEOC covers companies of 15 or more employees (in some states, the laws extend to smaller businesses).
The First Step In Confronting A Potential Case Of Retaliation
If you suspect that you have a retaliation claim, the first course of action is to address it with your human resources manager or supervisor by asking as many questions as you have to clarify any confusion you feel (make sure not to jump to conclusions and start firing off accusations before you've substantiated your case!)
Your employer might have a perfectly reasonable explanation for why they committed the act that gave you a negative impression.
Then again, they might not. If the supervisor fails to provide an acceptable answer, you may articulate the concern that you are being retaliated against, pointing out that the new negative experience(s) you are referencing took place after your lodging employment discrimination claim the previous month.
If the employer does not take your concerns to heart, you can proceed to file an external retaliation claim with an outside government agency and, possibly, take your employer to court.
Filing A Retaliation Claim Against One's Employer
In US states with strong employee rights laws, you will likely need to start with submitting a retaliation claim with your state's fair employment agency or labor commissioner.
Other employees from states without employment law protections can file a claim directly with the EEOC, which can be done online as well as by mail, telephone, or fax.
The statute of limitations for submitting a retaliation claim with the EEOC is 180 days (the time window may be extended up to 300 days in several states). Federal employees have 45 days to contact an EEO Counselor.
The Legal Process
The EEOC reviews the employer retaliation claim and decides whether or not it is founded. If the EEOC rejects the claim, the employee can still file a lawsuit in court against the employer, but they must first request a "right-to-sue" letter from the EEOC.
If the EEOC picks up the case or the worker takes the employer to court, the question comes down to "damages": the financial compensation for the losses the employee has suffered owing to the retaliatory behavior from the employer.
What Kinds Of Damages Can Be Recovered In A Retaliation Settlement?
Several types of damages can be awarded to retaliation complainants. Keep in mind that outcomes for a retaliation settlement can vary dramatically, as each individual case is influenced by myriad of variables and circumstances.
If the employee has been found to have been wrongfully terminated, demoted, or suspended, they may recover the lost wages suffered in the time they had been away from their former position (known as "back pay"), as well as the wages they would continue to lose in the future if not reinstated to former position (known as "front pay"). Sometimes, a worker may collect extra lost pay if they can prove that the employer's retaliation had a long-term negative effect on their career.
The employer's actions may have caused the victim "pain and suffering" by provoking anger, humiliation, and other emotional negativity via insults, shaming, violations of trust or privacy, character assassination, etc. When emotional distress cases are considered, a mental health specialist is brought in for a psychological assessment of the scenario.
Lost Job Benefits
For some employees, the job benefits are tied to the sum of hours worked. If a job loss/demotion/suspension affected the worker financially, they may be able to recover the lost vacation days, health insurance benefits, bonuses, and 401K contributions.
Punitive damages are intended to punish companies financially in order to reward the victim, as well as to provide a heavy disincentive to committing employment violations in the future. As such, punitive damages are awarded in the most severe instances of worker rights violations.
Taking an employer to court may require hiring an experienced employment lawyer. When a worker wins a lawsuit, the employer may be ordered to reimburse their attorneys' fees (in some cases, the offending corporation is ordered to cover the EEOC's legal fees as well!)
Top-To-Bottom Personnel Training Helps Prevent Retaliation Lawsuits
Anyone who has been first, discriminated against and then experienced retaliation for speaking up about it knows what an insult to injury it is!
There is one way to avoid both, discrimination complaints among employees and retaliatory behavior among the management: by providing the entire company with an accessible and impactful anti-discrimination/anti-retaliation training program.
EasyLlama's state-of-the-art, user-friendly software is designed to provide a lasting, state-specific education and guidelines on inappropriate behaviors for general employees, as well as special leadership training for the management.
Don't wait for ugly workplace hostility to creep up, prevent it with EasyLlama's workplace training solution! Your employees will be content and safe, and your business will avoid hefty payouts and enjoy a great reputation in the industry and within the community it serves. It's truly a win-win solution!
Written by: Maria Malyk