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 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.)
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.