What Is Workplace Retaliation?

Workers enjoy many legal rights outlined by various federal, state and local laws. However, these rights mean little if employees must suffer retaliation for exercising these rights.

Luckily, many of these laws have special provisions that prevent workplace retaliation. Workplace retaliation is an adverse employment action against an applicant or employee that occurs in response to the applicant or employee engaging in a protected activity.

What Is an Adverse Employment Action?

An adverse employment action is basically any action by an employer that might deter a reasonable person from taking part in a protected activity. This definition is broad for good reason, as every situation will be unique.

In most cases, the following actions by an employer will qualify as an adverse employment action:

Unwarranted negative performance evaluations.
Taking legal action against the individual.
Transfer to a different department or job that is less desirable or prestigious.
Removing or reducing managerial responsibility.
Almost any form of workplace discipline, such as an oral warning or written reprimand.
Examining an employee’s work behavior more carefully, such as attendance and performance evaluations.
Promotion denial.
Refusing the hire the individual.
Firing the employee.
Reducing the employee’s compensation.
Demoting the employee.
Physically or mentally abusing the employee.
Taking any action to undermine, second-guess or adversely affect an employee’s immigration status.

These are actions that most courts would conclude deter the average applicant or employee from exercising his or her legal rights. But remember, every case will be different, and deciding what constitutes an adverse employment action will sometimes depend on the specific facts of the case.

What Is a Protected Activity?

A protected activity is an action by an employee or job applicant that is protected by law. In the case of workplace retaliation, it will concern an employment right provided by a workplace law, such as those prohibiting discrimination in the office. There are two main types of protected activities when it comes to workplace retaliation.

First, there are opposition-based protected activities. These are actions in opposition to an improper employer action, like discrimination. When most people imagine a boss retaliating against an employee, they’re probably thinking about opposition-based protected actions. These may include:

Filing a complaint.
Threatening to file a complaint.
Refusing to cooperate with an employer’s illegal behavior.
Refusing the sexual advances of a coworker.
Trying to protect a coworker from harassment or discrimination.
Helping a coworker who is the victim of unlawful behavior, including assisting them with the complaint process.

Second, there are participation-based protected activities. These are activities that relate to an investigation into the alleged wrongful behavior by an employer.

This will primarily involve assisting with the investigation into claims of wrongdoing. Most of the time, these will be investigations by government agencies, like the U.S. Equal Employment Opportunity Commission (EEOC). Sometimes, it may include an employer’s own internal investigation.

What Federal Employment Laws Prohibit Workplace Retaliation?

Thankfully, the most prominent employment protection laws also include a bar against retaliating against an employee for taking advantage of these rights. These federal laws include:

Workplace retaliation is sometimes prohibited by state law. For example, both the D.C. Human Rights Act and the Virginia Human Rights Act prohibit workplace retaliation.

Suing for Retaliation

To successfully bring a case against an employer for employment retaliation, a plaintiff must prove three things:

The plaintiff engaged in a protected activity;
The plaintiff suffered an adverse employment action from the employer; and
The adverse employment action was the result of the plaintiff’s protected activity.

In most cases, a plaintiff will have little trouble establishing the first two elements. The third element can be challenging as most employers are smart enough not to put something in writing that explains that the employee is being punished because of the employee’s protected activity.

Often, a plaintiff proves this third element with several different pieces of circumstantial or indirect evidence. Then when a judge or jury looks at the totality of the circumstances, they can reasonably conclude that the employer’s action was retaliatory. Circumstantial evidence can sometimes consist of:

Suspicious timing between the adverse employment action and the protected activity.
The employer lies about the reasons for its actions against the employee suffering from retaliation.
Unusual employer activity following the protected activity. For example, employees always arrive to work late without issue, but the employee who complained about harassment gets written up for being late to work.

One of the advantages of the retaliation cause of action is that it can succeed even when an underlying claim does not.

For example, let’s say an employee gets demoted after filing a complaint with the EEOC for racial discrimination. The employee believes the demotion was in retaliation for the complaint.

Even if it turns out there was no racial discrimination, if the demotion was retaliation for filing the complaint, the employee could recover damages for workplace retaliation.

Damages Potentially Available in a Workplace Retaliation Claim

If a plaintiff successfully sues for retaliation, they may be eligible to recover:

Compensatory damages.
Punitive damages.
Reinstatement.
Front pay.
Back pay.

The Bottom Line

An employer cannot take revenge against an employee who takes advantage of a right provided by law. This retaliation is unlawful, even if it’s in response to a claim that turns out to be unfounded. If you’re an employee who thinks you’ve been the victim of an employment violation such as discrimination, there’s also a chance you might also be the victim of retaliation.

Three questions that can shape federal analysis

What right or activity is involved?

The first question is usually which statute and right are involved. For example, Title VII addresses specified opposition to a practice made unlawful by Title VII and specified participation in its enforcement. The ADA, ADEA, FLSA, FMLA, NLRA, USERRA, ERISA, and safety laws have their own text and scope.

What action is alleged?

Depending on the governing law and facts, a termination, demotion, discipline, change in pay or hours, denied promotion, threat, or other conduct may be relevant. A list on a website cannot determine whether any particular action satisfies a statute’s standard.

What legal connection is required?

The governing law may require a particular connection between the protected right or activity and the action at issue. The Supreme Court’s Title VII standard is statute-specific: in Burlington Northern v. White, the Court described conduct that might dissuade a reasonable worker from making or supporting a discrimination charge, with the significance of an act depending on context. In Nassar, the Court addressed but-for causation for Title VII retaliation. Those decisions should not be treated as a universal test for every federal law.

Selected federal frameworks

These are examples, not a complete list of federal workplace protections.

EEO laws: Title VII, the ADA, the ADEA, and GINA contain separate anti-retaliation provisions and definitions.
Wage and hour rights: The FLSA includes an anti-retaliation provision that also applies to the Equal Pay Act framework.
Family and medical leave: The FMLA separately addresses interference with protected leave rights and specified discrimination or participation.
Safety and whistleblower laws: The Occupational Safety and Health Act and other statutes administered by OSHA can have their own coverage and process rules.
Concerted activity: The National Labor Relations Act protects specified concerted activity for mutual aid or protection, subject to statutory definitions and exclusions.
Military-service and benefit-plan rights: USERRA and ERISA contain their own protections and enforcement structures.

Federal-sector employment can also involve different provisions and procedures. State and local laws may provide separate rules that are outside this federal overview.

Coverage, process, and remedies vary

Some statutes have employer-size, worker-status, public/private-sector, worksite, or subject-matter requirements. The available forum, timing, administrative steps, and potential relief can also depend on the statute and circumstances. Time limits and filing steps can be short and can vary by law, employer, location, and forum.

For current federal agency information, consult the EEOC, the Department of Labor Wage and Hour Division, the OSHA Whistleblower Protection Program, the National Labor Relations Board, and USERRA resources as applicable.

This article is general information, not legal advice. Employment law changes, and your situation may differ. For advice about your own case, talk to an attorney.

What Is Workplace Retaliation?