Every year, the Equal Employment Opportunity Commission (EEOC) reports its annual charges based on categories of discrimination. Year after year, retaliation tops the list, accounting for more than half of cases in 2020. While some workplace retaliation may seem obvious—a sudden firing or demotion, for example—it's also sometimes quite insidious. An employer may begin to closely monitor an employee, lower performance reviews or leave the worker out of key meetings. Retaliation may set the stage for an eventual firing as the employer tries to build up a record to justify termination.
It's challenging to prove retaliation, and the burden is on the employee. Not every negative employer action is considered retaliation. So what constitutes a workplace retaliation claim, and how do you spot retaliation?
What is workplace retaliation?
There are three components to any retaliation charge. First, the employee or applicant engages in a “protected activity” as defined by the EEOC. The employer then responds negatively to the employee's actions. And finally, retaliation, not some other reason, must motivate the employer's response.
Often, the “protected activity” occurs when an employee makes a complaint to the EEOC about discrimination, or simply reports discrimination to HR. Sometimes, an employee speaks up about sexual harassment or resists sexual advances. An employee may make requests for disability accommodations or ask about perceived salary discrepancies. Sometimes, the employee is a witness to a separate EEOC charge.
Instead of addressing the problem or supporting the employee's rights, the employer then takes some materially adverse action. This might include:
- Firing, failing to promote, demoting or refusing to hire
- Moving the employee to a less desirable department or location
- Threatening the employee or the family member of an employee
- Failing to include the employee in meetings, training groups or team events
- Changing the employee's schedule (like moving the person to a night shift or scheduling a parent to work during caretaking hours)
- Spreading rumors or falsely accusing the employee of something
- Closely monitoring the employee
- Giving a poor performance evaluation
- Setting the employee up for failure with tasks or workload
Identifying workplace retaliation
Any employee can be the victim of workplace retaliation—applicants, full-time employees, part-time employees and former employees. Sometimes, though, poor behavior on the part of the employer is misinterpreted as workplace retaliation: Personality conflicts, confrontational management styles or retaliation due to anything other than a protected issue may make for an uncomfortable work environment but not a legal case. True retaliation punishes the employee, but it's also meant for other workers—discouraging them from exercising their rights, reporting misbehavior or filing EEOC charges.
Signs that the employer is retaliating include:
- Unusual timing: If the employee reported discrimination then faced a demotion a week later, the timeline is suspicious enough to suggest retaliation.
- Comparative evidence: If the employee acted as a witness for a discrimination case then faced discipline over social media use while peers did not, there could be evidence of retaliation.
- Admission: Sometimes, a manager or supervisor will discuss retaliatory measures with other team members, directly connecting the protected activity to the adverse action.
When accused of retaliation, employers often deny it, claiming the employee's poor performance led to a demotion or transfer. In order to have a strong case, the employee should be able to counter this claim with documentation, like good performance reviews or cordial emails up to the point when the employer became aware of the protected activity.
Retaliation charges require careful documentation and compelling evidence.
If you think you're being retaliated against, it's worth speaking to an attorney.
At Barrett & Farahany, we are happy to answer any questions about your situation. Please contact us to speak to one of our attorneys.