Retaliation in the Workplace
The Prevalence of Retaliation in the Workplace
According to the Equal Employment Opportunity Commission (EEOC), in 2018, employees complained about employer retaliation more than any other form of discrimination. In fact, over half of all complaints that the EEOC received that year alleged retaliation:
- Retaliation: 39,469 (51.6%)
- Sex Discrimination: 24,655 (32.3%)
- Disability Discrimination: 24,605 (32.2%)
- Race Discrimination: 24,600 (32.2%)
- Age Discrimination: 16,911 (22.1%)
- National Origin Discrimination: 7,106 (9.3%)
- Color Discrimination: 3,166 (4.1%)
- Religious Discrimination: 2,859 (3.7%)
- Gender-Based Pay Discrimination: 1,066 (1.4%)
- Genetic Information Discrimination: 220 (0.3%)
Between 1997 and 2018, complainants alleging workplace retaliation received monetary benefits totaling more than $2.6 billion through the EEOC’s administrative process.
The Law Protects Employees from Retaliation in the Workplace
Anti-retaliation laws are generally designed to ensure that employees are completely free from employer coercion against reporting unlawful employment practices or cooperating in an investigation of such practices. Both federal and state law prohibit employers from retaliating against employees under certain circumstances.
At the federal level, there are a number of statutes that contain anti-retaliation provisions, including:
- Title VII of the Civil Rights Act of 1964: Title VII’s anti-retaliation provision prohibits employers from taking adverse action against an employee in retaliation for reporting, complaining about, filing a charge of discrimination about, or otherwise opposing race, color, religion, sex, or national origin discrimination in the workplace. Title VII further prohibits employers from taking adverse action against an employee in retaliation for assisting or participating in an investigation, legal proceeding, or hearing concerning race, color, religion, sex, or national origin discrimination in the workplace.
- 42 U.S.C. § 1981: Section 1981 prohibits employers from taking adverse action against an employee in retaliation for opposing race discrimination in the workplace.
- Americans with Disabilities Act (ADA): The ADA’s anti-retaliation provisions prohibit employers from taking adverse action against an employee in retaliation for reporting, complaining about, filing a charge of discrimination about, or otherwise opposing disability discrimination in the workplace. The ADA further prohibits employers from taking adverse action against an employee for testifying in, assisting with, or participating in an investigation, legal proceeding, or hearing concerning the employer’s alleged violation of the ADA. Additionally, the ADA prohibits employers from trying to coerce, intimidate, threaten, or interfere with an employee in an effort to discourage them from exercising their rights under the ADA.
- Fair Labor Standards Act (FLSA): The FLSA contains various rules requiring employers to keep accurate records of the number of hours that employees work each week, pay employees an extra amount of money when they work “overtime,” and pay employees at or above the minimum wage. The FLSA’s anti-retaliation provision prohibits employers from taking adverse action against employees for reporting, complaining about, or filing a lawsuit for unpaid wages under the FLSA. Likewise, the FLSA prohibits employers from taking retaliatory actions against an employee who has testified or is about to testify about the employer’s alleged violation of the FLSA.
- Equal Pay Act: The EPA prohibits employers from paying an employee of one gender less than an employee of the opposite gender for equal work and for jobs requiring equal skill, effort, and responsibility that are performed under similar working conditions. The EPA’s anti-retaliation protections prohibit employers from taking adverse action against an employee for reporting, complaining about, or filing a lawsuit alleging gender-based pay discrimination in violation of the EPA. The EPA further prohibits employers from taking retaliatory actions against an employee for testifying about the employer’s gender-based pay discrimination or cooperating in an investigation of such discrimination.
- Age Discrimination in Employment Act (ADEA): The ADEA’s anti-retaliation provision prohibits employers from taking adverse action against an employee in retaliation for reporting, complaining about, filing a charge of discrimination about, or otherwise opposing age discrimination in the workplace. The ADEA further prohibits employers from taking adverse action against an employee for testifying, assisting, or participating in any manner in an investigation, legal proceeding, or litigation concerning the employer’s alleged violation of the ADEA.
- Family and Medical Leave Act (FMLA): According to the Department of Labor, “The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.” The FMLA’s anti-retaliation protections prohibit employers from retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right. The FMLA further prohibits employers from taking an adverse action against any one (whether or not they are an employee) in retaliation for complaining about or otherwise opposing any unlawful practice under the FMLA; filing a charge against the employer under the FMLA; instituting a legal proceeding under the FMLA against the employer; causing a legal proceeding to be instituted against the employer under the FMLA; or testifying or agreeing to testify in any investigation or legal proceeding relating to a right under the FMLA.
- National Labor Relations Act (NLRA): The NLRA protects the rights of most employees in the private sector to form, join, decertify, or assist a labor union; collectively bargain with their employer through representatives of their own choosing; and join together to improve the terms and conditions of employment without a union. Information concerning the anti-retaliation protections afforded to employees by the NLRA is available on the NLRA’s website.
Additionally, there are numerous laws that protect employees from whistleblower retaliation in certain situations.
At the state level, the Texas Commission on Human Rights Act (TCHRA) provides employees in Texas with an additional layer of protection. The substantive law governing TCHRA retaliation claims is similar to the substantive law governing Title VII retaliation claims.
Proving a Retaliation Claim
To establish a retaliation claim under Title VII, an employee must show that:
- they engaged in protected activity;
- their employer took adverse action against them; and
- a “causal connection” exists between the protected activity and the adverse action.
Examples of Protected Activities
To establish a retaliation claim, an employee must show that they engaged in a “protected activity” that provoked their employer into retaliating against them. An employee engages in a “protected activity” if they “participated” in an administrative process for resolving legal claims (for example, the EEOC’s administrative process for resolving discrimination claims) or “opposed” discrimination in the workplace.
You may have a claim for retaliation if your employer took adverse action against you after you:
- filed a charge of discrimination with the EEOC, Department of Labor, Texas Workforce Commission, or other governmental agency against your employer;
- complained about, reported, or threatened to complain about or report unlawful employment practices to your employer;
- told another employee to stop engaging in offensive, unlawful conduct;
- filed a lawsuit against your employer;
- testified in an administrative hearing or lawsuit against your employer;
- engaged in an investigation of employer wrongdoing;
- cooperated in or assisted an investigation of unlawful employment practices;
- spoke to an EEOC investigator or an investigator from another governmental agency about your employer;
- provided information in an employer’s internal investigation of an employment matter;
- refused to obey an order from your employer that you reasonably believed to be discriminatory;
- publicly protested your employer’s discriminatory employment practices, such as writing a critical letter to customers;
- expressed support of coworkers who have filed formal complaints or a lawsuit for unlawful employment practices against your employer;
- resisted sexual advances or intervened to protect others in the workplace against sexual harassment or abusive conduct; or
- requested reasonable accommodation for a disability, medical issue, or religious practice or observance.
In addition to the examples above, there are many other types of protected activities in which an employee may engage. If you’re unsure whether you engaged in a protected activity, or whether your employer retaliated against you for doing so, contact the Wagoner Law Firm today for a free case evaluation.
Examples of Adverse Actions
In order to establish a retaliation claim, you will have to show that your employer took some type of adverse action against you after you engaged in a protected activity.
The following are examples of “adverse actions” that may serve as the basis for a retaliation claim against your employer:
- reduction in pay;
- loss or reduction of benefits;
- divesting of significant responsibilities;
- failure to promote;
- discontinuation of stipends;
- denial of a pay increase;
- reassignment to menial or degrading work;
- negative references to potential employers;
- severe or pervasive insults, ridicule, threats, intimidation, or humiliation intended to encourage you to resign.
This is not a comprehensive list of the types of conduct that may qualify as an “adverse action.” There are many other ways in which an employer can retaliate against an employee.
Connecting Your Protected Activity to Your Employer’s Adverse Action
Finally, to prove a retaliation claim, you will have to create a “chain of causation” linking your protected activity to your employer’s adverse action. To do this, a plaintiff must show that the employer’s adverse decision was based, at least in part, on the plaintiff’s protected activity. You cannot establish a retaliation claim if the protected activity and the adverse action are entirely unrelated.
To establish a chain of causation, you must first be able to show that your employer knew about your complaint or other protected activity. This is not a problem in cases where an employee complained to management about a discriminatory practice and was then fired. The employer clearly knew about the employee’s protected activity when the employee complained about the discrimination.
In some cases, however, a manager or supervisor who decides to fire an employee may claim that they were unaware of the employee’s complaint or other protected activity when they decided to fire the employee. If others, particularly higher-ranking employees, within the organization knew about the employee’s complaint or other protected activity, then their knowledge may be enough to hold the entire company liable despite the decision maker’s alleged ignorance of the complaint.
The fact that your employer knew about your protected activity when it took adverse action against you does not, by itself, connect the two events. In determining whether there is a connection between your protected activity and your employer’s subsequent adverse action, courts may consider a variety of factors. The following are examples of the types of evidence that an employee may use to link their protected activity to their employer’s adverse action:
- Direct Evidence of Employer’s Retaliatory Intent: Employer threats, hostile behavior, or negative remarks about an employee’s decision to complain about an unlawful employment practice, or that are intended to discourage employees from complaining about such a practice, may constitute direct evidence of the employer’s retaliatory intent. For example, a manager’s statement that he would “get rid of the complainer” shortly before firing an employee who had recently filed a charge of discrimination against the manager may serve as direct evidence of the manager’s retaliatory intent. Similarly, a supervisor’s statement to subordinates that, “If I find out that any of you have spoken to the EEOC, you’ll regret it,” is direct evidence of retaliatory intent if the supervisor subsequently makes good on his threat.
- Time Gap Between the Protected Activity and Adverse Action: A major factor in determining whether an employer’s retaliatory decision was motivated, at least in part, by an employee’s protected activity is the amount of time between the two events. For example, the Fifth Circuit has found that a time lapse of up to four months between the protected activity and the adverse action may be sufficiently close to establish a causal link between the two, while a five-month lapse is not close enough without other evidence of retaliation. Mitchell v. University of Louisiana System, 154 F. Supp. 3d 364, 405 (M.D. La. 2015).
- Other Facts That May Create a Chain of Causation: There are a number of other facts that may create a causal link between your protected activity and your employer’s adverse action, including the fact that the manager/supervisor who decided to take adverse action against you held that same position at the time you engaged in the protected activity; your manager or supervisor began treating you unfavorably after you complained or otherwise engaged in a protected activity; or your employer began monitoring you or scrutinizing your work more closely after you complained or otherwise engaged in a protected activity. There are many other factual circumstances that you may use to prove that your employer’s adverse decision against you was based, at least in part, on your complaint about its unlawful employment practice or your involvement in some other type of protected activity.
Working with an Employment Lawyer
If you believe that you may have a retaliation claim, there are a number of things you can do to protect your rights and improve your chances of a successful outcome:
- Document everything. Keep detailed notes about the events that transpire at work. Each time you are subjected to negative, hostile, retaliatory, or offensive statements or conduct at work, write down the date, time, location, a detailed description of what happened, the names of those involved, the names of any witnesses who were present when it happened, and exactly what was said or done.
- Keep copies or take screenshots of any relevant emails, texts, photos, videos, or social-media posts. Make sure that you do not violate any laws in doing this.
- Tell a trusted friend, family member, or coworker what happened and write down the details of those conversations. They may provide corroborating statements if you need them later on.
- Keep notes and documents related to your job productivity, performance, and all of the harms and losses that you have suffered as a result of the wrongful treatment. If possible, review and/or obtain copies of your performance reviews and personnel file. Having your own copies of these documents is important because you and your attorney may need to use them as evidence should your employer try to justify its actions against you on poor job performance or some other incident unrelated to your protected activity. Moreover, having your own copies of these records will prevent attempts by your employer later on to cover its tracks by adding records to your personnel file after-the-fact, altering your employment records, or “losing” key documents that might support your claim.
- Store all documents, notes, and evidence outside of your office. Make sure to keep any electronic notes, documents, photos, or videos on a personal computer or phone, not a work device. Avoid using employer-provided computers or mobile devices. Assume that your employer monitors all communications to and from employer-issued mobile devices and your work email account.
In addition to taking the actions described above, hiring a knowledgeable and experienced employment lawyer may help you achieve the best outcome possible in your case. An employment lawyer may advise you on your rights, assist you in complying with any administrative prerequisites to filing a lawsuit, ensure that filing deadlines are met, investigate and collect the evidence that you will later need to prove your retaliation claim, and represent you in a lawsuit.
Because of the complicated administrative process, short filing deadlines, and complex web of anti-retaliation laws that might apply to your case, victims of retaliation in the workplace should contact the Wagoner Law Firm without delay for a free case evaluation.