Retaliation occurs when employers take adverse actions against employees for exercising their legal rights. While this behavior is prohibited, it’s still prevalent in many workplaces.
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Types of Workplace Retaliation
Below are 10 types of workplace retaliation:
Termination
Probably the most common form of retaliation is termination, where an employee is fired for engaging in protected activities such as reporting discrimination or harassment.
Demotion
Employees may face demotion as a form of retaliation, where they are stripped of their current position or responsibilities due to their involvement in protected activities.
Salary Reduction
Retaliation can also manifest in the form of salary reduction, where an employee’s pay is decreased as punishment for engaging in protected activities.
Negative Performance Reviews
Employees may receive unjustifiably negative performance reviews as a form of retaliation. These negative reviews may negatively impact their career advancement and reputation within the company.
Exclusion from Opportunities
Retaliation may involve excluding employees from opportunities such as training programs, promotions, or projects in retaliation for their protected activities.
Increased Supervision or Micromanagement
Some employers retaliate by subjecting employees to increased scrutiny, supervision, or micromanagement. In most cases, the objective is to undermine their performance or create a hostile work environment.
Isolation or Ostracism
Retaliation can take the form of isolating or ostracizing employees within the workplace. This isolation makes employees feel marginalized or excluded from workplace activities and social interactions.
Unreasonable Work Assignments
Employees may face retaliation through unreasonable work assignments or tasks that are designed to be punitive or burdensome as a consequence of their protected activities.
Harassment or Intimidation
Retaliation may involve harassment or intimidation tactics directed at employees who engage in protected activities. Doing so can be a subtle way of punishing employees.
Threats of Retaliation
Employers may explicitly or implicitly threaten employees with retaliation if they continue to engage in protected activities. These threats instill fear in employees and discourage further action.
Legal Standards For Establishing A Workplace Retaliation Claim
Here are five legal standards for establishing a workplace retaliation claim:
Engagement in Protected Activity
The employee must demonstrate that they engaged in a legally protected activity, such as reporting discrimination, filing a complaint, or participating in an investigation.
Adverse Employment Action
The employee must show that they experienced an adverse employment action, such as termination, demotion, or harassment, as a direct result of engaging in the protected activity.
Causal Connection
There must be a causal connection between the employee’s protected activity and the adverse employment action, typically demonstrated through timing or circumstantial evidence.
Pretext
The employee must refute any legitimate reasons provided by the employer for the adverse action, showing that it was merely a pretext for retaliation.
Knowledge by Employer
In some cases, the employee may need to establish that the employer knew about the protected activity and the adverse action, demonstrating that retaliation was intentional or foreseeable.
Defenses for Retaliation Claims Against Employers
Both employers and employees are given a chance to defend their cases before the court passes a verdict. Here are the common defenses employers can use in retaliation claims against them:
Lack of Causation
Employers can argue that the adverse action taken against the employee was not causally related to any protected activity the employee engaged in.
Legitimate Business Reasons
Employers can demonstrate that the adverse action was taken for legitimate business reasons unrelated to any protected activity, such as:
- Poor performance
- Violation of company policies, or
- Economic reasons like downsizing.
Consistent Treatment
Employers can provide evidence that the adverse action taken against the employee was consistent with how other employees in similar situations were treated, thus refuting any claim of retaliation.
Documentation
Employers can rely on thorough documentation to show that the decision to take adverse action against the employee was made independently of any protected activity and was based on objective criteria.
Timeliness
Employers can argue that there was a significant time gap between the protected activity and the adverse action, suggesting that retaliation was not a motivating factor.
Supervisor Immunity
Employers can assert that the individual(s) responsible for the adverse action is protected by qualified immunity, shielding them from personal liability.
Pretext
Employers can challenge the employee’s assertion of retaliation by exposing inconsistencies or contradictions in their claims, thus undermining the credibility of the retaliation allegation.
Waiver or Release
Employers can argue that the employee waived their right to bring a retaliation claim through a valid waiver or release agreement signed voluntarily and knowingly by the employee.
Employees should be able to identify the signs of retaliation before seeking help. Addressing and preventing such behavior ensures a fair and respectful workplace.
Retaliation occurs when employers take adverse actions against employees for exercising their legal rights. While this behavior is prohibited,
