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Employment Law Firm in California

Workplace Retaliation Attorney


Retaliation Against An Employee Is Illegal — Protect Your Rights

Tension and friction at work may be inevitable when people with different personalities work closely together. However, there are instances when a work disagreement can become hostile and may have unlawful repercussions.

For example, perhaps you were in the position to defend a coworker who was subject to racial discrimination. Maybe you spoke up about illegal activities that were happening in your workplace. While there is nothing wrong with speaking up for a coworker or reporting an employer’s illegal activity, your employer may still decide to retaliate against you, which is against the law.

Examples of retaliatory actions include:

  • Demotion.
  • Discipline.
  • Termination.
  • Salary reduction.
  • Poor performance evaluations.
  • Change in job assignments, duties, or shifts.
  • Change in the terms and conditions of employment.

1) What Exactly Is Workplace Retaliation?

Workplace retaliation occurs when an employer punishes or treats an employee differently for participating in a legally protected activity. Unfortunately, there are employers who think they can avoid safety rules, commit fraud, theft, or engage in other wrongdoing or illegalities in the workplace and get away with it.

In particular, adverse actions should never be taken against any employee simply for raising occupational safety or health concerns, or for reporting the occurrence of wrongdoing in the workplace. All employers have a legal duty to ensure a safe work environment and the consequences of engaging in workplace retaliation can be substantial. 

There are basically two types of retaliation. There is retaliation to opposition, which happens when an employer requires an employee to perform an illegal act. Then there is retaliation to participation, which happens when an employer takes adverse action against an employee for engaging in a protected activity, such as:

  1. Participating in an agency investigation.
  2. Filing a charge with the EEOC or California’s Department of Fair Employment and Housing.
  3. Participating in a discrimination lawsuit.

What Does Retaliation In The Workplace Look Like?

Let’s consider a classic example of workplace retaliation. Say that Mary goes to her company’s Human Resources Department (HR ) and explains that, “Joe will not stop asking me out for a drink. I have been clear and repeatedly told him no, but he insists. Can you please make him stop?”

However, since Joe is one of the company’s top earners, the HR manager decides to ignore Mary’s valid complaints and simply transfer Mary to another department. This is a straightforward example of workplace retaliation: Mary complained about very real instances of sexual harassment, and in response, her employer punished her by moving her to another department rather than deal with the problem.

More examples Of Workplace Retaliation

You Are Denied A Promotion, Demoted Or Fired. Exposing an employer’s illegal practices, requesting reasonable accommodation, or assisting in any employment related legal proceedings are all protected conduct under California and federal employment law.

Simply put: if your employer demotes you, fires you, denies you a promotion, or decreases your pay in response to the above mentioned protected activities, they may be guilty of workplace retaliation.

You Are No Longer Included In Workplace Activities. Isolating an employee is a very common but overlooked form of retaliation. For example, if your manager starts excluding you from meetings, work-related decisions, or any activities you should be involved in, this could count as retaliation.

Let’s say that you defended a coworker who was being racially harassed by your supervisor. The next day, you check your calendar and discover that you are no longer scheduled on any of your team’s weekly meetings. This may prove that your supervisor has unlawfully retaliated against you for standing up for your coworker.

You Experience Post-Employment Retaliation. Say that a situation at work becomes so unbearable that you have no choice but to leave your job. You can still be subject to retaliation. For example, if you are looking for a new job and use your former employer’s name as a reference, your former employer can attempt to sabotage you by providing negative or disparaging information about you. 

2) Did I Experience Workplace Retaliation?

The general rule is that only changes which have an adverse effect on your employment count as retaliatory.

Let’s consider an example. Say that you complained about a manager’s sexual harassment and his attitude towards you becomes different from one day to the next. However, if he simply acts more distant and not as “friendly” as before, his behavior is not retaliatory.

However, there’s reason for concern if something negative happens to you immediately after filing a complaint, or for just discussing a potentially problematic issue. Say that you were fired for not “being a good fit” after you complained to your company’s Human Resources department about your boss sexually harassing you. In that case, you may have a strong argument that your boss retaliated against you for complaining about him.

How Do Retaliation Claims Work?

A discrimination or harassment claim must be made in good faith in order for an employee to be entitled to protection from retaliation. Furthermore, if an employer disciplines or fires you for not completing your job duties or other misconduct, they are not guilty of retaliation.

Finally, if you do decide to file a lawsuit for retaliation, you’ll have to prove:

  1. That you engaged in a protected activity.
  2. That your employer took adverse action against you.
  3. That there is a direct connection between your activity and your employer’s action.

There are two types of protected activity:

1) Opposition. An employee who opposes any illegal form of discrimination, harassment, or retaliation is engaged in a protected activity. Protection extends not only to employees who complain directly, but also to those who participate in an internal investigation.

In short, when an employee communicates to his or employer that he or she believes the employer is guilty of harassment or discrimination, that employee will be entitled to protection from retaliation.

2) Participation. An employee who files a discrimination charge with the EEOC, participates in an investigation, or files a lawsuit is also protected from retaliation.

It takes more than showing an employee engaged in protected activity and was then the victim of a negative job action — a direct connection between the two must be established. This is known as causation.

Let’s consider an example. Say that an accountant complains to her Human Resources (HR) department about sexual harassment. She is then laid off with the rest of her team because the company needs to scale back costs. This employee would have a tough time proving she was fired for complaining about sexual harassment, because the adverse action was not necessarily related to her complaint. The harassment and the subsequent lay off may indeed be related, but causation will be very difficult to establish.

The lesson here is that proving causation directly is challenging. Let’s consider a scenario where causation is clear cut. For example, if a supervisor says, “If you file a complaint, I will fire you”, that’s a clear example of causation. In this case, an employee can easily show a link between the two events.

Typically, employees must present indirect evidence of retaliation. This includes:

  1. The Timing Of The Adverse Action. If the adverse action that was taken against you came immediately after your complaint, retaliation looks much more likely. Analyzing the timing of an adverse action is one of the most common ways of proving retaliation.
  2. The Employer Was Aware Of The Complaint. If you are making a retaliation claim, you must prove that the employer who took adverse action against you actually knew about the complaint. It is impossible to prove your employer acted against you because of your complaint if they didn’t know about it in the first place.

There Is No Other Explanation. If you can prove your employer had no other reason for taking the adverse action against you, or that your employer’s reason for the action it took doesn’t make sense, you will likely have a stronger argument. Let’s say that your pay is cut immediately after filing a complaint. Your employer claims your entire department’s pay was cut, but only yours was affected. Suddenly, your employer’s explanation appears suspicious if your pay was cut and your other coworkers didn’t have their pay affected.

3) Can An Employer Defend Itself Against My Retaliation Claim?

Protected activity and a materially adverse action both may have occurred, but evidence of the following — on its own or in combination — may severely undermine an employee’s ability to prove the adverse action he or she suffered was motivated by retaliation:

  • The employer had a valid and non-retaliatory reason for the action it took, such as poor employee performance, misconduct, or necessary downsizing.
  • The employer was not actually aware of the protected activity.
  • Job applicants or employees who did not engage in protected activity were also treated the same way.
  • There was evidence that the adverse action would have happened anyway, regardless of the existence of a retaliatory motive.

West Coast Employment Lawyers Is Here to Help

The best course of action is to secure legal advice immediately upon determining that unfair treatment has or is occurring at your workplace. The experienced workplace retaliation lawyers at West Coast Employment Lawyers will do everything possible to construct effective arguments to win your case. Our attorneys are committed to helping victims of workplace retaliation receive full vindication, fair compensation, and the peace of mind they deserve.

If you or a loved one has been wrongfully discriminated against or terminated at work due to their age, immediately contact West Coast Employment Lawyers for a free, no-obligation consultation with a workplace retaliation attorney at our firm. You can reach our legal team 24/7 by calling 1-800-247-9235 or emailing info@employmentattorneylosangeles.com.

References

https://www.eeoc.gov/laws/types/retaliation.cfm

https://www.justia.com/trials-litigation/docs/caci/2500/2509/

https://www.eeoc.gov/employees/howtofile.cfm

https://www.dfeh.ca.gov/

https://www.eeoc.gov/policy/docs/accommodation.html

https://www.eeoc.gov/laws/types/facts-retal.cfm


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