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Retaliation in the Workplace

Retaliation includes any adverse action taken against an employee for filing a complaint or supporting another employee’s complaint under a variety of laws. The most common type of retaliation claim involves an employee who alleges that she was first harassed or discriminated against and later punished for making a complaint to her employer or a relevant federal agency.

Mastering HR Report: Discrimination

Employers also are prohibited from punishing employees for exercising other rights assured to them. For example, employers can’t retaliate against an employee who asks for a reasonable accommodation of her disability under the Americans with Disabilities Act (ADA) or who applies for medical leave under the Family and Medical Leave Act (FMLA). Employers also must be careful not to retaliate against employees who file Title VII of the Civil Rights Act of 1964 (Title VII) complaints of harassment or discrimination.

Employers also must be wary of violating USERRA by discriminating against applicants or current employees. Retaliating against such employees, which includes testifying or making a statement in connection with a proceeding under USERRA, also is strictly forbidden and punishable under the Act. That applies even to individuals who haven’t served in the military.

Recently, the Supreme Court has also ruled that the protections against discrimination and harassment guaranteed in Section 1981 of the Civil Rights Act of 1866 and the Age Discrimination in Employment Act (ADEA) extend to retaliation.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination

It’s also illegal to retaliate against an employee for opposing an illegal employment practice, or for testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under some statutes.

The Sarbanes-Oxley Act is another avenue an employee can take in pursuing a retaliation claim against an employer. The Act’s “whistleblower” provision prohibits publicly traded companies and their officers, employees, contractors, subcontractors, and agents from retaliating against employees who blow the whistle by either reporting a violation of securities and fraud laws to the proper authorities or by assisting in an existing investigation that’s related to a violation of federal securities or fraud laws.

Part of what makes retaliation claims so dangerous is that there are an infinite number of ways for an unwitting employer to do something that looks like retaliation even though it isn’t intended to be. In fact, to prevail on a retaliation claim, there’s no requirement that whatever the employee complained about in the first place was actually illegal.

Audit your policies and practices on retaliation avoidance with the Employment Practices Self-Audit Workbook

All that’s required is that the employee reasonably believed she was complaining about something that was illegal. It’s also possible for an employee’s discrimination or harassment claim not to have enough merit to hold up in court, but if her employer took adverse action against her after she complained or filed the claim, she might have a legitimate retaliation claim.

For that very reason, it’s not unusual for an employee’s retaliation claim to survive even after her underlying claim of discrimination or harassment is dismissed.