When is Retaliation Declared Illegal?

Oftentimes, employees who complain about unfair labor and/or discriminatory practices in the workplace, or assist in an unfair employment practice investigation, certain individuals try to find ways which will get such employees demoted or terminated. Worst scenario is if the employer will play an active or direct role in retaliating against these employees.

There are many existing federal and state laws that provide protection employees and job applicants from any form of unfair and discriminatory practices in the workplace. These laws also require employers to make sure that their companies are free from discriminatory practices and that whoever would be proven guilty of such acts should be given the necessary disciplinary actions.

Despite the existence of laws, including and especially, Title VII of the Civil Rights Act of 1964 however, so many firms remain to be guilty of committing different forms of discriminatory practices. Title VII prohibits any form of workplace harassment, abuse and discrimination based on one’s sex or gender, race, color, national origin and religion. Though not clearly stipulated, Title VII , nevertheless, also strictly prohibits any form of retaliation against any employee who either makes, or helps make, evident prohibited acts, especially if the perpetrator is someone in authority.

Retaliation refers to any hostile act or behavior an employer, employment agency or labor organization may resort to, to show dissatisfaction against an employee who plays a part in legally protected activities. A hostile or adverse act can include denial of employment, unjustified negative evaluation, threats of criminal or civil charges, or unjust termination in order to hinder an employee either from taking part in an employment discrimination proceeding or from complaining about a discriminatory act. A legally protected activity, on the other hand, refers to any action that is aimed at exposing and proving harassment and/or discriminatory practices in the workplace, such as:

  • Refusal to perform discriminatory or illegal acts that are ordered by a superior;
  • Complaining about or protesting against workplace discrimination;
  • Deciding to file charges of employment discrimination or showing intent to file one; and,
  • Participating as a witness in a legal proceeding or EEO investigation.

A person complained about will certainly be displeased with the complainant who makes accusations against him/her. Thus, the latter will have to be certain that accused individual is, indeed, resorting to retaliatory acts or is simply displeased.

While some retaliatory acts may be obvious, like a demotion, salary reduction, being laid off or being denied a promotion or salary increase soon after a legally protected activity; there are also those
that are subtle and are, therefore, not evident, such as job relocation or sudden change in work schedule, which can be a major factor in limiting an employee’s flexibility.

Besides participating in a legally protected activity, it is also mentioned in the Leichter Law Firm that it is illegal for employers to retaliate against employees who file Workers’ Compensation claim or who report illegal activity as whistleblowers. Employers who unlawfully retaliate against an employee may be liable for lost wages, compensatory damages, punitive damages, and attorney’s fees.

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