Signs and Consequences of Retaliation in the Workplace

Retaliation in the workplace is a common issue that manifests in the form of unreasonable actions taken by an employer, usually in response to a complaint or a report of misconduct against them by an employee. Examples of such actions include demoting or even terminating the employee in question.

However, employees are protected against these kinds of acts by employers and have the right to file retaliation claims against them under state and federal law. This ensures that employees who step forward to report misconduct are not punished for doing the right thing.

In this article, we will explain what are considered acts of retaliation in the workplace, signs of workplace retaliation, and how and when to file a retaliation claim.

What is Workplace Retaliation?

Workplace retaliation essentially involves a leader or employer taking negative action against an employee who filed a complaint regarding harassment or workplace discrimination. According to the Equal Employment Opportunity Commission, filing a formal complaint is a protected activity. Therefore, retaliation in the workplace after a complaint is filed is an illegal activity.

Human resource employees supervisors, and other employees must be well-versed in understanding the concept of workplace retaliation to ensure the proper measures are taken, and employment discrimination is addressed appropriately.

Common employer reactions considered as workplace retaliation include the following:

• An employer takes adverse action by keeping employees from attending business events or meetings.
• An employer transfers an employee to another location or a different department.
• An employer withholds a promotion to a desirable position or raises from an employee.
• An employer gives an employee an unnecessarily negative performance review.
• An employer makes an employee feel unsafe or uncomfortable or makes working conditions undesirable.
• An employer limits the number of hours an employee can work.

In addition to the actions outlined above, there are also several subtle adverse employment acts that may count as workplace retaliation and must be addressed.

Subtle forms of workplace retaliation include:

• Ignoring an employee and excluding them from group activities, which is also referred to as “cold shoulder” treatment.
• Being excessively critical and micromanaging an employee’s tasks that were deemed sufficient in the past.
• Spreading false rumors about an employee.

5 Signs of Workplace Retaliation

Workplace retaliation takes many forms, but if an employer executes a negative action that causes a reasonable employee to exercise their legal rights, it is more than likely enough reason to file a legal workplace retaliation claim.

The following actions by an employer or company leader are commonly observed in cases of workplace retaliation:

1. Termination – An employer fires an employee for unclear or unnecessary reasons.
2. Demotion – An employer causes an employee to lose their status, seniority, and responsibilities and places them in a lower-ranking position.
3. Deduction of hours or salary – An employer gives an employee a pay cut or shortens the hours on their work schedule.
4. Reassignment – An employer assigns certain duties and responsibilities that cause an employee undue hardship.
5. Exclusion – An employer intentionally excludes an employee from training sessions, staff meetings, or any other group activities in which other employees participate.

There are many other forms of adverse employment action, such as unwarranted and unexpected negative performance reviews and using such reviews as grounds for a promotion denial.

How to Prove Retaliation for Retaliation Claims

Proving workplace retaliation definitively requires you to establish three things:

1. You executed a protected activity according to the Equal Employment Opportunity Commission
2. You suffered negative consequences after exercising such an activity
3. The adverse actions that occurred were the direct result of the legally protected activity

Below is an inexhaustive list of legally protected activities:

• Filing a complaint against sexual harassment or other forms of employment discrimination, including race and national origin discrimination in the workplace
• Requesting disability or religious accommodation
• Talking to the police regarding an employer’s action that you believe is unlawful
• Filing a workers’ compensation claim
• Acting as a witness for a colleague in case retaliation occurs
• Talking to your manager, supervisor, or the human resources department about harassment or discrimination in the workplace
• Intervening with or resisting sexual harassment or other illegal practices
• Refusing an order that can lead to discrimination
• Taking a leave of absence that you are entitled to
• Filing a formal complaint with the Labor Commissioner in good faith
• Inquiring about salary differences if you suspect discriminatory wage gaps
• Participating in political actions
• Inquiring about your employer’s policies on immigration

Several federal and state laws protect employees and job applicants when they execute these actions. Anti-discrimination laws explicitly protect workers against retaliation in the workplace following a protected activity.

The most challenging part of a retaliation case is often proving causation. The invoked law determines the connection between the adverse employment action and the protected activity, and some are more precise than others. For clarification, consider these examples:

• Retaliation claims made according to the Sarbanes-Oxley Act are required to prove that the protected activity was a major contributing factor that caused the employer to retaliate.
• A retaliation claim made under the FEHA is required to prove that protected activity was the primary motivator for the retaliation.
• A retaliation claim made under Title VII or ADEA is required to prove that protected activity was the significant action that led to retaliation.

More often than not, it is very difficult to prove that an employer’s actions were a form of retaliation. Circumstantial evidence often serves as the primary grounds to prove that a protected activity led to an adverse reaction. Such circumstantial evidence often includes:

• The close proximity between the negative action and the protected activity
• A dramatic decline in work performance review after the protected activity was exercised
• Co-workers do not face the same level of increased scrutiny for similar activities following the execution of the protected activity

Before filing a complaint against an employer, consult a human resources representative or an experienced employment lawyer to ensure the evidence is sufficient to take the matter further. It will also strengthen your case if a witness is willing to get involved in the retaliation case.

FAQs

What happens if the benefits or salary of a reasonable employee are reduced?

If your salary or benefits are suddenly reduced following the execution of a legally protected action, it is considered an adverse employment action, and you have the right to file a complaint and exercise your legal rights.

An unwarranted reduction in any of the following areas is deemed an adverse employment action:

• Monthly salary
• Hourly wage
• Paid leave
• Commission
• Sick leave
• Medical leave according to the Family and Medical Leave Act
• Overtime payments

Can an employer demote or terminate an employee for performing a protected action?

Termination and demotion are some of the most grievous forms of workplace retaliation. It is common for demotions to occur shortly after the execution of a protected activity. Until such time, an employer will likely reprimand you for minor things and write poor reviews regarding your work performance to justify the demotion.

Is a reassignment considered retaliation?

If an employer transfers you to another work location or reassigns you to a different role without cause, it may be a form of workplace retaliation.

You can distinguish a reasonable reassignment from retaliation by considering whether the transfer puts you in a problematic position, either related to location or duties. Employers are notorious for making an example of an employee by reassigning them. They often reassign staff members to show other employees what will happen to them if they speak up, which is undoubtedly a form of retaliation.

What should I do if I suspect workplace retaliation?

If you suspect that you are a victim of workplace retaliation, it is essential that you see an employment lawyer as soon as possible. Several employment laws entail distinct procedures, so getting the proper guidance is advised.

Some federal and state laws require employees to report their complaints to the organization’s human resources department before further measures can be taken.

If the retaliation claim aligns with Title VII, you must file a discrimination charge with the EEOC, which will effectively serve as a mediator between you and the employer.

The EEOC will conduct a thorough investigation if no conclusion can be reached or if the employer fails to act in good faith. Thereafter, the EEOC will take complete control of the case and sometimes even issue a Right to Sue letter, giving you the right to pursue the claim in the Supreme Court.