Retaliation by an employer generally occurs when an employee is disciplined or otherwise treated unfairly because they engaged in any number of legally protected activities. These activities could include reporting workplace misconduct, filing a discrimination complaint, requesting reasonable accommodations or participating in investigations into unlawful practices. While many people associate employer retaliation with wrongful termination, it can take many other forms.
Retaliation can be subtle or overt. It may occur as a result of a single action or it may be a situation that evolves over time. Retaliation is illegal under various federal and state laws. These laws include Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).
For an action to qualify as retaliation, three elements generally must be provable:
- The employee engaged in a protected activity.
- The employer took adverse action against the employee.
- There is a causal link between these concerns.
Proving each of these legal elements of retaliation can be challenging, but seeking legal guidance can potentially help workers do just that.
Common types of retaliation
While firing or terminating an employee is the most well-known form of retaliation, it is far from the only one. Other common types of employment retaliation include:
- Reduction in pay or hours: Employers may retaliate by cutting an employee’s pay or reducing their work hours, directly affecting their financial stability.
- Unfavorable job assignments: Shifting an employee to less desirable tasks or isolating them from meaningful projects can be a form of retaliation. This may include reassigning them to different departments, giving them less visibility or assigning menial work that does not align with their qualifications.
- Hostile work environment: Retaliation can also take the form of creating a hostile or toxic work environment. This can include increased scrutiny, micromanagement, verbal abuse, exclusion from meetings or opportunities and/or fostering an atmosphere of intimidation. Over time, this type of environment may make the employee feel pressured to leave voluntarily.
- Negative Performance Reviews: Employers may use poor performance evaluations as a way to retaliate, especially if the negative reviews are unwarranted or exaggerated. This can serve as a pretext for other adverse actions, such as denying promotions or raises.
- Reduction in Benefits: Employers might retaliate by cutting an employee’s benefits, such as denying previously available perks like health insurance, vacation time or access to retirement plans.
Thankfully, employees who experience retaliation are protected by federal and state laws. Seeking personalized legal guidance can help affected workers to exercise their rights accordingly.