What Is Workplace Retaliation?

workplace retaliation
workplace retaliation

It is illegal for an employer to take an adverse employment action against an employee because that employee engaged in a protected activity. Let’s break it down a little. The above sentence has three parts: (1) “adverse employment action,” (2) “protected activity,” and (3) “because of.” Let's look further at what each of these mean to the courts and how they might impact your case.

Adverse Employment Action

This means that something bad happens to you at work. The most obvious adverse employment action is being fired or laid off. But adverse employment action is not limited to termination. Other actions may be adverse employment. For example, harassment, suspensions, demotions, reductions in compensation and marginalization may be adverse employment actions. Bottom line is that an “adverse employment action” is something bad that happens to you at work.

Protected Activity

Protected activity is activity aimed at battling discrimination in the workplace. This includes internal complaints, filing charges, testifying, or otherwise expressing your opposition to what you believe is discrimination in the workplace. If you do something to address discrimination in the workplace, it is probably protected activity. (If you bring attention to issues other than discrimination, you may be a whistleblower.)

Because Of

This is the tricky one. The adverse employment action must be “because of” the protected activity. If your employer fires you and it has nothing to do with your protected activity, that is perfectly legal. Because there is almost never “smoking gun” evidence, courts tend to look at circumstantial evidence like timing and different treatment before/after the protected activity. The “because of” element is the lynch-pin of all retaliation cases.

If you are concerned about unlawful workplace retaliation, speak to an employment attorney. Most, including this firm offer free initial consultations. Contact us to learn more.

Retaliation Claims Upheld in Supreme Court

Title VII of the Civil Rights Act of 1964 was put in place to protect employees from discrimination based on national origin, religion, race, color, and sex; it also protects employees from retaliatory actions by their employer for any Title VII claims the employee may make against their employer. Over the years, courts have had varying opinions on what proof was necessary to support a retaliation claim by an employee. In the case of retaliation claims, some courts feel the plaintiff need only prove that the retaliatory action was a ‘motivating factor’ in the opposed action, where other courts feel that the plaintiff should prove the retaliatory action was the ‘but-for’ cause of the opposed action. In the case of Nassar v. University of Texas Southwestern Medical Center, the US Supreme Court reinforced that retaliation claims are subject to ‘but-for’ causation.

Nassar v. University of Texas Southwestern Medical Center

The retaliation for Nassar begins at the University of Texas Southwestern Medical Center where Dr. Nassar served as a university faculty member. Dr. Nassar also served as a Parkland Memorial Hospital staff physician through an agreement between the school and hospital that university faculty members would fill vacant staff positions within the hospital. Dr. Nassar, of Middle Eastern descent, felt that his supervisor at the university, Dr. Levine, showed bias secondary to his ethnicity and religion and presented his complaints to Dr. Levine’s supervisor, Dr. Fitz. An arrangement was made where Dr. Nassar could continue to work at the hospital while no longer being a member of the university faculty. At a later date, Dr. Nassar chose to resign, sending a letter to Dr. Fitz and others communicating his reason for leaving, which was secondary to Dr. Levine’s harassment. Dr. Fitz subsequently protested the hospital’s job arrangement with Dr. Nassar and consequently, the hospital position was withdrawn.

Retaliation Claims

In Nassar’s retaliation case, Dr. Nassar claimed two Title VII violations: 1)Dr. Nassar claimed that his supervisor’s religiously- and racially-motivated harassment resulted in his constructive discharge from the university (a violation of the antidiscrimination provision); 2)Dr. Nassar alleged retaliatory actions by Dr. Fitz because of his complaints against Dr. Levine (resulting in the loss of his job opportunity).

Using the "But For" Standard of Causation

The jury found in favor of Nassar. The Fifth Circuit affirmed finding that Nassar had demonstrated that retaliation was a "motivating factor" of the university’s actions, which had caused Nassar to lose his employment offer with the hospital. The Supreme Court reversed the Fifth Circuit’s decision and held that Title VII retaliation claims must be proven using a "but for" standard of causation rather than the less burdensome "motivating factor" standard. The Court focused on the language of Title VII’s anti-retaliation provision, which "makes it unlawful for an employer to take adverse employment action ‘because of’ certain criteria."

Contacting Us

If you feel you've been the victim of retaliatory conduct contact our team today. Our New Jersey retaliation lawyers can help you.

What is Workplace Retaliation?

There are several things that employers can do which may constitute unlawful workplace retaliation.  If you feel that your employer has retaliated against you, or you have otherwise suffered wrongful termination or wrongful workplace retaliation, our experienced New York Employment Lawyers can help. Stewart v. CUS Nashville, LLC is an interesting Fair Labor Standards Act (FLSA) case in which several employees who worked for a bar claimed that their employer shorted them on overtime pay.  Two of the plaintiffs also claimed that after they sued, but while they were still employed, they were the object of threatening posts appearing in various social media platforms, and thus decided to pursue claims of retaliation.

The employees saw this post on the blog of the owner of the bar.  The other employee alleged that she felt threatened when she saw this status update from the bar’s director of operations.  The director of operations, who admitted to being intoxicated on the night the post was made, claimed not to recall making (or subsequently deleting) the status update.

Workplace Retaliation comes in all forms.

The United States Supreme Court has held that any employer taking action that would “dissuade a reasonable employee from making or supporting a charge of discrimination” can be retaliation.  The same maxim holds true when the underlying claim is a violation of the FLSA.

In this case, the court had little difficulty concluding that a blog post from her boss as well as the status update could possibly deter plaintiffs from pursuing their claims.  Accordingly, the court held that the employees had stated viable retaliation claims under the FLSA.

If you think that you are a victim of workplace retaliation, please contact us.


What is workplace retaliation?

Our New York Employment Lawyers are often contacted by employees who believe that they are being illegally retaliated against. Workplace retaliation is unlawful. If you feel you have been retaliated against for making complaints in the workplace, you should know if you are protected under the law.  Our experienced employment lawyers can help yo to determine if you are being retaliated against. Think about these questions to see if you might be a victim of unlawful retaliation:

  1. Have you recently objected to any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?
  2. Have you recently refused to participate in any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?
  3. Have you recently disclosed, or threatened to disclose, to any appropriate governmental agency an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation?
  4. Have you recently provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer?

Here are some examples of other types of complaints where the law protects you from retaliation.

Discrimination: If you are the victim of discrimination or harassment based upon your race, age, sex, religion, national origin, color, disability, genetic information, disability, sexual orientation, or your association with a person in one of these categories, then you have to follow your employer’s published discrimination/harassment policy and report it.

Wage/overtime violations: If you’re terminated for objecting to failure to pay wages owed or failure to pay overtime, you may be protected from retaliation under the Fair Labor Standards Act or your state’s wage/hour laws.

What to do:

  1. Put it in writing even if the employer’s policy says to have a meeting. You can present the written document at the meeting.  That way you have proof that you complained about something that’s protected.
  2. If you complain, keep it professional and to the point. Stick to the facts.
  3. Your employer is entitled to investigate your complaint. That means even if they have a policy of keeping your complaint confidential, your boss, the person you’re complaining about, and your witnesses and other coworkers will probably find out about it. Be prepared for that to happen, and be ready to report retaliation.
  4. If you are retaliated against for reporting something illegal, put your complaint of retaliation in writing. If the retaliation doesn’t stop, or if you get fired, disciplined, demoted, or a pay cut as a result, contact an employment attorney.

If you have any questions, or think you are being unlawfully retaliated against, contact us.  Our New York Employment Lawyers can help.