Employment Retaliation

Retaliation:  According to the Equal Employment Opportunity Commission (EEOC), an employer (15 or more employees) may not fire, demote, harass or otherwise "retaliate" against people (applicants or employees) because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit)  The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

The Americans with Disabilities Act (ADA) (20 or more employees) also protects individuals from coercion, intimidation, threat, harassment, or interference in their exercise of their own rights or their encouragement of someone else's exercise of rights granted by the ADA.

Retaliation occurs when an employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity.

An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Such as: termination, refusal to hire, and denial of promotion, other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance, and any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights.

Adverse actions do not include petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, "snubbing" a colleague, or negative comments that are justified by an employee's poor work performance or history.  Employees are not excused from continuing to perform their jobs or follow their company's legitimate workplace rules just because they have filed a complaint with the EEOC or opposed discrimination. A protected activity can include requesting a reasonable accommodation based on religion or disability.

The Fair Labor Standard Act (FSLA) provides that it shall be unlawful for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee. 

To establish a cause of action for retaliation a plaintiff must prove the following elements: he or she engaged in a protected activity; his or her exercise of this right was known by the employer; thereafter, the employer took an employment action adverse to her; and there was a connection between the protected activity and the adverse employment action.

1.  Anyone who participates in bringing a claim of unlawful discriminatory practice is engaging in a protected activity.

2.  To establish a causal connection, a plaintiff must produce evidence from which a reasonable finder of fact could infer that the employer would not have taken the adverse action had the plaintiff not engaged in the protected activity. A plaintiff may satisfy this burden by offering evidence of the employer's knowledge that the plaintiff engaged in protected activity coupled with closeness in time between that knowledge and the adverse action.