Retaliation is the most common type of employment discrimination complaint that is filed with the EEOC. Retaliation happens when an employer punishes an employee in revenge for the employee’s participation in certain legally protected activity. This punishment involves some type of adverse employment action that is taken because of the employee’s participation in the legally protected activity, such as making certain types of complaints or engaging in union activity.
Types of Adverse Employment Action
Adverse employment action is a negative action that affects a person’s employment. This action may include:
- Terminating the employee
- Demoting the employee
- Disciplining the employee
- Reducing the employee’s salary
- Reassigning the employee to a less desirable position
- Giving the employee a poor performance review
- Changing the employee’s work shift
- Engaging in verbal or physical abuse
- Threatening or making reports to governmental agencies, such as immigration service
- Changing the level of scrutiny over the affected employee
- Excluding the complaining employee from staff meetings or a project
- Treating the complaining employee’s family member negatively
While retaliation is clear in some cases, it may be more subtle in others. In those cases, the court will consider the circumstances involved in the case. The court may consider whether the employee and a reasonable person would consider the employment action negative in nature.
The court often considers how close in time the protected activity and the adverse employment action were to determine if there was a likely connection between them.
Prohibited Forms of Retaliation
Some forms of prohibited retaliation and the basis of retaliation claims include adverse employment action that follows:
- An employee’s complaint to the EEOC about workplace discrimination or harassment
- An employee’s cooperation in an EEOC investigation or participation as a witness in this type of proceeding
- An employee’s complaint to a supervisor or manager about employment discrimination or harassment
- Whistleblower reports
- Workers’ compensation filing
- An employee’s refusal to follow orders that would result in discrimination if they were followed
- An employee’s refusal of sexual advances
- An employee’s request for a disability or religious accommodation
- An employee’s inquiry of another employee to uncover evidence of discriminatory wages
If you have suffered retaliation after any of these actions, contact an experienced employment lawyer for help with your claim.
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