Retaliation In the Workplace

Under federal and state laws, employees are protected from employer retaliation in the workplace. In California, retaliation is considered to be “any adverse employment action resulting from an individual opposing practices prohibited by the FEHA or an individual who filed a complaint, testified, assisted or participated in any manner in an investigation, proceeding or hearing conducted by the Fair Employment and Housing Commission (FEHC) or Department of Fair Employment and Housing (DFEH) or their staffs.” If an employee wants to establish the basic components of a case of retaliation, they must show that they engaged in a “protected activity”, experienced a negative employment action, and that there was a link between the protected activity and the negative employment action. After these components have been established, the employer must offer a legitimate reason for the adverse employment action. If the employer is successful in offering a legitimate reason, then there is no longer a presumption of retaliation. The burden will then move to the employee who wrongfully tried to prove retaliation.

Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Equal Pay Act (EPA) are federal laws that prohibit retaliation in the workplace. Retaliation made by an employer, employment agency, or labor organization that resulted from an employee’s involvement in protected activity is forbidden by these laws. According to a United States Supreme Court ruling, a retaliation claim under Title VII of the 1964 Civil Rights Act could surface from any employer action that would discourage an employee from making a charge of discrimination.

Claims of retaliation in the workplace are growing. Nearly 25 percent of the claims filed with the U.S. Equal Employment Opportunity Commission (EEOC) are based on retaliation. Essentially, they are growing because retaliation is easier to substantiate than discrimination, and juries are more likely to believe that someone would retaliate than discriminate. When there is a short amount of time between when an employee files a workers’ compensation claim and gets fired, retaliation is easy to prove. Discrimination cases do not involve this shortcut of proof. In order for employers to protect themselves from retaliation claims, they must ensure that their management treats employees fairly when they file claims against the company. Furthermore, they should seek legal counsel before terminating an employee. Above all, employers should communicate to their employees that they have the protected right to complain about an issue involving their employment.