What Counts as Workplace Retaliation?
You may be surprised to know that workplace retaliation is still the most common charge filed with the United States Equal Employment Opportunity Commission. At around 60% of all complaints of discrimination, the recorded number of federal employment discrimination suits, including retaliation, totaled 26,635.
Employees who are covered by lawful protections should have an invisible shield that safeguards them from workplace retaliation. According to California employee rights lawyer Xinying Valerian, employers cannot retaliate against them.
So, if employees are retaliated against due to performing their sense of duty, they can file a workplace retaliation claim to recover compensation and protect their careers.
But what legally counts as retaliation in the workplace? Let’s learn the specifics so you can take the appropriate steps to protect your rights.
The Legal Framework: Title VII and Beyond
Retaliation is prohibited under a wide, almost tangled network of federal employment statutes; each of them guards specific “protected” actions in its own lane. Title VII of the Civil Rights Act says you can’t retaliate against employees who speak up against discriminatory practices or who help out in Title VII proceedings.
Other acts that protect employees from retaliation are the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Equal Pay Act, and the Pregnancy Discrimination Act.
The Fair Labor Standards Act protects workers who complain about wage issues from retaliation. In addition, OSHA takes care of such complaints with regard to workers’ safety.
The Supreme Court established the test for determining whether retaliation qualifies as such in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). In short, according to the Court, the action is considered retaliatory if it deters a person from participating in protected opposition to employment practices.
Retaliation is a concept that is wider than “adverse employment action,” which is a common term used in discriminatory lawsuits. While adverse employment action always involves some form of demotion or reduction in salary, retaliation only requires a material disadvantage.
What Counts as Protected Activity
According to https://www.kingemploymentlaw.com/, retaliation occurs when an employer takes negative action against an employee because the employee engaged in a legally protected activity. The retaliation prohibition basically covers two categories of protected activity, but they get described in slightly different ways depending on the context.
Opposition activity is one. It is a conduct where an employee protests against a reasonably unlawful employment practice. Employees may report illegal acts like harassment or discrimination in the workplace. This also includes filing a complaint about an employment issue. They can also refuse to obey what they consider discriminatory instruction and speaking up against injustice in the workplace.
What is essential here is the reasonableness of the employee’s belief that the action is illegal. It does not matter if such complaints turn out to be baseless; what matters is that they are made in good faith.
The second category is participation activity: it’s the involvement in formal proceedings under the employment discrimination statutes. Filing an EEOC charge, testifying or working with an EEOC investigation, acting as a witness in a colleague’s discrimination proceeding, and filing a lawsuit are all examples.
Courts usually say participation protections are broader than opposition protections. In other words, participation in EEOC proceedings can stay protected even if the employee conduct related to those proceedings was otherwise unreasonable.
The concept of protection does not only limit itself to the complaining employee and can cover other individuals as well, such as colleagues, relatives, or anyone who is related to the protected activity. This would imply that an employee can also have protection when his/her spouse files a charge with the EEOC and the employer takes revenge on him/her.
What Counts as Actionable Adverse Action
Adverse actions as per the Burlington Northern test include those that are materially adverse in nature; in other words, the actions should be such that they could discourage a reasonable person from filing a complaint of discrimination. Some examples of the actions that could be considered to be materially adverse include
- Termination, demotion, pay reduction, and denial of promotion are the most straightforward examples, and they’re generally actionable across the board
- Transfers to less desirable positions, shifts, or locations, even if there’s no pay cut, can still count when a reasonable employee would read the move as punishment for the protected activity
- Negative performance reviews that aren’t justified by what the employee is really doing and that then show up soon enough after a protected activity. In practice, the time between the protected activity and the negative review is often the main indicator for a causal link
- Being left out of meetings, training opportunities, mentorship programs, or high-visibility projects when it ends up affecting the employee’s career growth
- Increased scrutiny, surveillance, or micromanagement that wouldn’t have happened “but for” the protected activity
- Threats, hostility, and intimidation that would deter a reasonable employee from continuing to participate in protected activity
The material adversity requirement weeds out petty slights and small annoyances that don’t actually get to the level of deterring protected activity. Courts regularly reject retaliation arguments based on a lone rude comment, temporary schedule adjustments, or minor tweaks in job responsibilities that do not affect compensation or the employee’s career direction.
In the end what really separates actionable retaliation from ordinary workplace friction is whether the conduct would materially deter a reasonable employee from exercising their statutory rights.
Establishing the Causal Connection
What is the causal connection between the protected activity and the adverse action? This is a question that needs proof when it comes to the retaliation claim.
Usually the easiest path is temporal proximity, meaning the adverse action followed the protected activity pretty close in time.
According to the Supreme Court, temporal proximity by itself can be enough circumstantial evidence of causation in certain situations. And this must be within a few weeks, if not, months.
So an adverse action that happens two years after a protected complaint is usually a weak causation inference, while something two weeks after an EEOC charge is filed tends to look strong.
If timing is not sufficient to prove causation, one can use other evidence for causation, like making statements that show bias, conducting activities that are different from the usual activities, treating employees differently who belong to the same category, or taking any negative action against an employee right after he/she lodges an EEOC charge.
Filing a Retaliation Claim
Retaliation claims under Title VII and most other federal employment statutes need you to file an EEOC charge first before you can bring it to federal court. The time limit is usually 180 days from the retaliatory act, but it can stretch to 300 days in states that have their own fair employment agencies.
And the same idea of admin exhaustion, plus the post-right-to-sue 90-day window that fits discrimination cases, also shows up for retaliation claims under the same statutes.
But retaliation claims under certain other statutes, like some OSHA whistleblower provisions, can follow different admin steps and tighter deadlines, sometimes as quick as 30 days from when the retaliatory act happens.
