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Retaliation Claims in The Workplace

One of the most common types of claims that workers allege is retaliation claims. For example, when a government employee reports illegal actions by their employer and is consequently treated poorly. Employers and human resource managers must take care to avoid retaliation claims based on their response to a workplace complaint.

Protected Activity

Federal law, which covers every employer in the United States, prohibits employers from retaliating against employees for engaging in certain protected activity. Such protected activity includes the following:

  • Making a complaint alleging discrimination in the workplace

  • Participating in an investigation regarding workplace harassment

  • Acting as a witness in an Equal Employment Opportunity investigation

  • Requesting a reasonable accommodation for a disability

  • Resisting unwanted sexual advances from a supervisor or coworker

  • Communicating about employment discrimination to a manager

  • Refusing to follow orders that would cause discrimination 

  • Reporting illegal activity by the employer through a whistleblower claim

  • Participating in union activity

When engaging in protected activity, the employee cannot be disciplined for these actions. However, this protected activity does not shield an employee from discipline for other reasons that are not related to this activity. 

Forms of Retaliation

Retaliation can be found when the employer takes an adverse action against an employee for participating in protected activity. Retaliation may exist in the following situations:

  • The employer gives the employee a negative performance evaluation

  • The employer begins to verbally or physically abuse the employee

  • The employer threatens to make reports to the authorities, such as making a report of an undocumented alien to immigration authorities

  • The employer transfers the employee to a less desirable position

  • The employer changes the employee's work schedule in order to make his or her position more difficult

  • The employer fires an employee after a report of discrimination was unfounded

Having clear guidelines in place during the investigative process helps avoid retaliation claims. If an employer is the recipient of a workplace complaint about harassment or retaliation, the employer has a duty to conduct a prompt and impartial workplace investigation into the claim.

Cite this article: Lynch, N. (2017). Retaliation Claims in the Workplace: