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All About Retaliation: What It Is and How to Spot It

When seeking wrongful termination lawyers for a potential retaliation case, it’s important to consider a few major facts and definitions to ensure that you can build a sound legal argument.

boss and employee

What Is Retaliation?

Retaliation can be characterized in a few different ways. According to the Equal Employment Opportunity Commission (EEOC), it can best be defined as an adverse action by an employer against a covered individual (typically an employee) for participating in a “protected activity.”

What Is a Protected Activity?

This is perhaps the most important part of any potential retaliation case. An employee can only sue for retaliation if they are a covered individual engaged in a “protected activity.”

“Covered individual” and “protected activity” are seemingly loose terms, but they typically apply to those that are involved with proceedings requesting accommodations related to employment discrimination based on age, disability, sex, religion, race, color, political preference, or national origin.

Most other cases do not typically count as retaliation, including negative consequences as a result of “whistleblowing” in the face of financial or ethical concerns. However, under the Family and Medical Leave Act, inquiring about family and medical leave or requesting family and medical leave is also considered a protected activity, as is inquiring about the company retirement package.

What Is an Adverse Action?

An adverse action is something an employer may do in order to discourage his or her employees from engaging in these protected activities.

In some cases, employers have been known to:

  • Fire, refuse to hire, or refuse to promote these employees
  • Threaten, unjustly monitor, and generally be negative toward these employees
  • Intimidate or even assault these employees in order to scare them

employee sitting in desk

How Can I Recognize Retaliation?

Recognizing legally defensible retaliation is sometimes hard to do. People are emotional beings, after all. Is it possible you just misinterpreted your employer’s shortness with you at that last meeting? Are you just overanalyzing his or her attitude because of your participation in the protected activity? Does it seem clear that your employer just isn’t as friendly as he or she was before?

The key to recognizing true retaliation is this: Is your employer still being professional?

If the employer’s attitude doesn’t seem to be severely impacting the professional environment at your workplace, it may be difficult for wrongful termination lawyers to gather enough evidence to make an effective case.

Proving Retaliation

If you’re engaged in a protected activity and your employer drastically reduces your hours, or immediately demotes or fires you, or starts giving you work that seems dramatically tilted to spite you, then you may have a provable case of retaliation on your hands.

The first step to building a case is to discuss your suspicions with your employer and keep documentation of when and where you talked about it. From there, keep a written ledger of every confrontation with your manager and how engaging in your protected activity continues to strain the relationship into the future.

If possible, also try to find evidence of positive feedback that’s dated from before you began taking part in the protected activity. If you have nothing but complimentary emails up until the date you started attending employee discrimination meetings, then this may be a clear indication that you’re experiencing legally defensible retaliation.


  1. https://www.eeoc.gov/laws/types/facts-retal.cfm
  2. https://www.dol.gov/whd/fmla/fmlaamended.htm

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