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Retaliation Definition & Examples

Retaliation & Legal Examples

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Retaliation Definition & Examples

According to state and federal laws, an employer is strictly forbidden from retaliating against employees or job applicants for taking legally protected actions. When an employer asserts these legally protected rights or actions, it is known as a protected activity. Retaliation occurs when the employer takes an adverse action against an employee or a job applicant due to their engagement in a protected activity. 
 
Several laws expressly forbid retaliation from an employer, such as Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), and the Equal Pay Act (EPA). If you believe you've been the victim of workplace retaliation, it's essential to contact an experienced attorney. At Morgan & Morgan, we have successfully handled retaliation claims all across the United States. Contact us today for a free consultation.

Examples of Legally Protected Activities

If you believe your employer is retaliating against you, it's a good idea to have as much information and as many examples of retaliation as possible so you can determine what action to take. The following is an example of some legally protected activities:

  • Filing or being a witness in an EEO investigation, lawsuit, or complaint 
  • Filing a complaint with a supervisor or manager about being discriminated against or harassed 
  • Responding to questions during an investigation of alleged harassment by an employer
  • Refusing to follow orders because they would directly result in discrimination
  • Resisting sexual advances 
  • Intervening to protect another employee from sexual advances
  • Requesting an accommodation due to a disability or religious practices
  • Requesting information about salary information in order to discover potentially discriminatory and unfair wages

Title VII of the Civil Rights Act of 1964 (Title VII)

Title VII of the Civil Rights Act prohibits employers from discriminating against employees on the basis of race, color, sex, national origin, and religion. An employer cannot discriminate based on these characteristics regarding any terms, conditions, or privileges of employment. Additionally, this act protects employees from being discriminated against in recruiting, hiring, promoting, transferring, training, disciplining, discharging, assigning work, performance measurement, and providing benefits.
 
In addition to it being unlawful to discriminate against people based on the protected classes listed above, it's also illegal to make employment decisions based on stereotypes or assumptions related to a protected characteristic. Further, Title VII makes it unlawful for an employer to retaliate against an employee who has made a charge, testified, assisted, or participated in any charge of unlawful discrimination under the Act.

Examples of Retaliation That Violate Title VII of the Civil Rights Act of 1964  

  • A manager refuses to promote you, a Korean person, to a management position because they believe Korean people cannot act as good leaders. You make a complaint, and due to that complaint, you are fired or demoted.
  • You hear your employer use a derogatory word when speaking to a person of color. You make a formal complaint about what happened. Shortly after you make your complaint, you are reassigned and your salary is decreased.

The Age Discrimination in Employment Act (ADEA)

Under the ADEA, it is illegal for an employer to discriminate against someone based on their age if they are 40 years of age or older. It offers no protections to a person who is under the age of 40. Unlawful discrimination based on age includes discriminating in any aspect of employment, including hiring, firing, salary, work assignments, promotions, bonuses, layoff, training, benefits, and any other term or condition of employment.

Examples of Retaliation That Violate the ADEA

  • You're 45 years old, and your manager continuously promotes younger employees with less experience instead of you. You file a complaint. Shortly after the complaint is filed, your boss demotes you.
  • You notice that your company is laying off older employees and only hiring younger employees. You make a complaint. Soon after you make your formal complaint, your boss changes your work schedule, knowing that you are unable to work those hours.

Title V of the Americans With Disabilities Act (ADA)

The Americans With Disabilities Act is a law that prohibits the discrimination of disabled people in all areas of public life, such as employment, school, transportation, and all public and private places that open their doors to the general public. As it relates to employment, the ADA ensures that all people, regardless of a disability, have access to the same employment opportunities and benefits as people without disabilities.
 
The ADA requires employers to provide a reasonable accommodation to qualified people with disabilities. A reasonable accommodation is defined as a change that accommodates employees so they can do their work without causing the employer "undue hardship."

Examples of Retaliation That Violate the ADA

  • You take a leave of absence for depression. Toward the end of the leave, you call your boss to discuss a reduced work schedule upon your return. Your boss said that he would look into it. A few days later, you get a call from your boss stating that your position has been eliminated. A few months later, your boss decides to try to hire a replacement. You applied for your former position, and you were not selected.
  • You suffer from hypersensitivity to certain chemicals (scented hand creams, deodorants, furniture polish). You had a meeting with your supervisor to discuss possible accommodations, including the possibility of making the workplace perfume-free or installing a special air filtration system in your specific workspace. Your supervisor was not receptive to this and even became slightly confrontational. A few days later, you were terminated. 

The Equal Pay Act (EPA)

The Equal Pay Act requires that men and women be compensated equally for equal work. The jobs don't have to be identical, but they must be substantially equal. This is determined by job duties, not job titles. This law governs all types of pay, such as salary, benefits, bonuses, overtime, stock options, life insurance, vacation pay, and more. 

Examples of Retaliation That Violate the EPA

  •        You, a female, discover that your male coworker is making more money than you are. You both have identical job duties and started working at the company at the same time. You file an equal pay claim. Shortly after you file the claim, your supervisor demotes you, and you no longer have the same duties as your co-worker.  
  •        You, a female, discover that your male coworker is making more money than you are. You both have identical job duties and started working at the company at the same time. You file an equal pay claim. Shortly after you file the claim, you are continually reprimanded by your supervisor for issues that they've never mentioned before. Additionally, you are given negative performance reviews by your boss, despite the fact that your work productivity and quality remained unchanged.

It's important to note that while all of these examples appear to be retaliation, there's no absolute formula to determining retaliation. For example, if you've been making mistakes at work and have been warned of your poor performance, your employer could use this as a way to show that you were fired for that specific reason and not as an act of retaliation.

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FAQ

Morgan & Morgan

  • Retaliation Definition & Examples

    If you believe your employer has retaliated against you for your engagement in a protected activity, there are a few steps you must take before you can file a lawsuit. The purpose of filing a lawsuit is to recover damages and put you in the same position or close to the same position you would be in if the discrimination hadn't occurred.
     
    If you've already spoken with your employer and they won't correct the issue, or you don't feel comfortable speaking to your employer, you need to file a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC is the federal agency that handles retaliation charges. If you're unable to come to a resolution, you can then request a right-to-sue letter. This letter allows you to file a lawsuit. 
     
    You should also contact an experienced attorney right away. They will consult with you and explain what you need to do to file a lawsuit and what kind of evidence you need to obtain and keep track of. The more evidence you have that exhibits signs that your employer was retaliating, the better. They will advise you to document everything, including emails, text messages, voicemails, and performance reports from before and after your claim was filed. 

  • How Do You Prove Retaliation?

    In order to prove that your employer was retaliating, you must show the following: 

    • You experienced or witnessed unlawful discrimination,
    • You engaged in a protected activity,
    • Your employer took an adverse action against you as a result of your engagement in the protected activity, and
    • You suffered damage or harm as a result of the adverse action (the employer’s action must be "materially adverse." This includes any action that might deter a reasonable person from engaging in protected activity).

    This might sound somewhat complicated to prove, but if you hire an experienced lawyer who has handled retaliation claims, they'll be able to walk you through it. One of the most important things you can do is make sure you document absolutely everything, such as your complaint and any texts, emails, or written notices you've received from your employer. Additionally, make sure everything is dated.

  • What Damages Can I Recover if I Win My Retaliation Case?

    If you win your case against your employer, there are several types of damages that you can be awarded. Some possible options are lost income, pain and suffering, attorney's costs and fees, and punitive damages. The exact amount that you recover will also depend on what damages you actually suffered as a result of the retaliation. 

  • What if I Reported Something That Wasn't Actually Discrimination?

    Interestingly enough, if you report what you believe to be discriminatory behavior and your employer retaliates, it is still unlawful for them to do so, as long as you had a good faith belief that what you were reporting was discriminatory. 
     
    Example
    : You see your employer talking to a coworker, and you believe he has made an unwanted sexual advance.

    You report this behavior to a superior. As a result of your complaint, you are fired. It turns out that what you witnessed was not a sexual advance and was not harassment. In this case, you have a retaliation claim because you believed in good faith that you witnessed harassment.

  • Protect Yourself—We Can Help

    If you believe you've been the victim of illegal retaliation, it's crucial to contact an experienced attorney or law firm with a proven track record of successfully taking on these cases. At Morgan & Morgan, we can help you determine if you have a valid claim. Fill out the free case review form on our website, and one of our employment attorneys will review it and get back to you right away. Morgan & Morgan attorneys have recovered more than 9 billion dollars in damages for our clients. Let us help you protect yourself and your job from illegal workplace retaliation.

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