What Does ‘Retaliation’ Mean in a Workplace Setting?

Nov 12, 2020
By Peter Friedmann

Workplace retaliation occurs when a manager or supervisor punishes, mistreats, or fires an employee specifically because the person engaged in what is called a “protected activity”. Federal and state laws define what “protected activity” is.  Some examples include, but are not limited to:

  • Reporting discrimination, harassment, or retaliation;
  • Cooperating with an investigation into a report of discrimination, harassment, or retaliation;
  • Refusing to follow policies or orders that result in discrimination;
  • Refusing demands for sexual favors, dates or sex in order to get or keep a job or promotion;
  • Demanding the minimum wage and/or earned overtime you or other employees are entitled to;
  • Reporting crimes, regulatory violations, or certain ethical lapses (i.e., acting as a whistleblower);
  • Requesting an accommodation for a disability;
  • Requesting an accommodation for a religious practice or observation; and
  • Intervening on behalf a coworker who is suffering discrimination or harassment.

Laws and statutes prohibit discrimination on the basis of race, national origin, sex, sexual orientation, gender identity, religion, age when older than 40, disability status, pregnancy, FMLA and military service. Sexual harassment is covered under the laws that address sex discrimination.

Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Fair Labor Standards Act, and the Americans with Disabilities Act are common examples of laws that protect employees from retaliation. How to prove retaliation in the workplace?

The Equal Employment Opportunity Commission provides the following examples of retaliation that employees might experience in the workplace:

  • Harsh penalties for minor or nonexistent violations of work rules,
  • Schedule changes that amount to punishments and interference with activities outside of work such as caring for a child,
  • Increased scrutiny of job performance and work products,
  • Sabotage,
  • Undeserved low performance evaluations,
  • A transfer or demotion to a low-status, dirty, or dangerous assignment,
  • Denial of a promotion or career development/training opportunity,
  • Threats to report the employee’s immigration status or to call the police, and
  • Verbal or physical abuse.

The most-severe form of workplace retaliation is a wrongful termination. This takes two forms, and both are against the law.

A manager or supervisor can simply fire an employee who engages in protected activity. This might happen shortly after a person engages in protected activity.  If the termination is very close in time to the protected activity and there is no legitimate reason for the termination, this will make the employee’s claim easier to prove.  Obviously, an employee can be fired for misconduct or a violation of policy even if that person engages in protected activity.

The more insidious and traumatizing form of wrongful termination is called constructive discharge. This happens when a manager or supervisor allows the work environment to become so hostile that the employee who has been targeted for retaliation quits because no reasonable person could tolerate working in that type of environment.

Victims of workplace retaliation can demand compensation in the form of back pay and monetary damages. Other damages may be available based on the laws that govern the particular situation.

At The Friedmann Firm, our experienced employee rights attorneys stand up for workers who have suffered illegal retaliation. We are based in Columbus, but we advise and represent workers all across Ohio. You can schedule a free and confidential consultation online or speak with us by calling 614.610.9755.