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Workplace Retaliation: What you should know.

When it comes to workplace retaliation, certain forms of employer retaliation are not only unethical, they’re illegal on both the federal and state level.

Thus, workplace retaliation can be a murky issue that’s difficult to clearly pin down without a specific set of facts. It's possible that you may have already committed retaliation against an employee without knowing it. To make things more confusing, not all incidents of workplace retaliation are illegal; it all depends on the circumstances. Since workplace retaliation is among the most frequently alleged bases for discrimination claims made to the Equal Equal Employment Opportunity Commission (EEOC), every employer should be familiar with what’s involved. You should always discuss specific cases involving potential workplace retaliation with an experienced lawyer like us, but we’ll cover some of the basics here.

What is workplace retaliation?

According to the EEOC, retaliation occurs when you punish an employee for engaging in a legally protected activity. The “protected activity” is specific and generally involves making a complaint of discrimination or harassment, or participating in workplace investigations of alleged discrimination or harassment.

The punishment suffered has to be adverse employment action. Adverse employment action can be firing, layoffs, demotions, reduced pay, poor reviews, refusing promotion, transfers, and/or shift changes. When determining whether the action is adverse, you must evaluate from a "reasonable person" standard. Therefore, if your negative action against the employee would deter a reasonable person in a similar situation from making a complaint, it’s illegal.

For example, if an employee complains that they spoke out about racial discrimination in the workplace and subsequently thereafter, they were terminated, if you can't prove any other reason for legal termination, then your actions are illegal and a violation of federal and state employment laws.

The truth is questionable.

Employees are protected by law, even if his or her complaints eventually prove to be false. The laws are designed to encourage employees to report alleged incidents of discrimination, harassment, and/or retaliation, rather than being intimidated or deterred by an employer’s ability to punish them and thus suffering civil rights violations.

Sometimes, retaliation can be subtle and hard to detect, the courts consider all circumstances of the employee’s particular situation. In addition to the federal laws, states can have their own unique laws that protect employees from retaliation for other reasons. Some states, for example, make it illegal to retaliate against employees who file for workers compensation and/or join a union.

Prevent workplace retaliation before it happens:

To help prevent workplace retaliation, you should create a formal anti-retaliation policy for your company and have your managers strictly abide by it. As your Innovative Business Lawyer, we can assist you in evaluating federal and state laws to create a comprehensive policy for your particular work environment. And if you are involved with a situation where retaliation may be an issue, you should consult with us as your Innovative Business Lawyer before taking any action. We can help you navigate the complex laws involved and take the appropriate action if and when it’s called for. Contact our office to learn more.


This article is a service of SL DeBarros Law Firm, and can help you make the wisest business choices throughout life and in the event of your death. We also offer a Business Protection Start-Up Session or a Business Planning Audit for an ongoing business, which includes a review of all the legal, financial, and tax systems you need for your business. Call us today to schedule.

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