Under no circumstances can an employer take negative action against an employee who engages in protected workplace activity, such as reporting harassment and discrimination. When an employer punishes an employee in any way – either openly or discretely – under these circumstances, they can be held liable for retaliation.
You may be wondering what the extent of retaliation includes (as far as an employer’s actions and reasons for them), and you may especially wonder how an employee can prove retaliation occurred. We’ll address these topics below as we provide a detailed look at what retaliation is and what employees can do about it.
What is Considered Workplace Retaliation?
If the description of retaliation above seemed a little different than you expected, you’re not alone. Many people see the word “retaliation” and think of a boss who lashes out at an employee for small slights or in a bullying manner. This notion of retaliation isn’t far from the truth, but it’s missing the essential element that makes otherwise legal behavior illegal: a protected workplace activity.
What is a Protected Workplace Activity?
A protected activity in the workplace is anything an employee should be able to do without fear of reprisal from their employer. This is because that activity is protected by law. We say “should” only because employers all too often violate these rights, which is why retaliation lawsuits occur at all.
Examples of protected activities at work include the following:
- Reporting a coworker’s discriminatory behavior and/or harassment
- Complaining about racist or sexist company policies
- Reporting sexual harassment
- Demanding earned, but unpaid, overtime pay
- Whistleblowing to a government agency
- Participating in an investigation conducted internally or by a government agency
- Forming a union or discussing unionization
There are many different types of protected activities one can engage in at work – the list above hardly scratches the surface. The main takeaway, though, is that there are certain things employees can do and be legally protected against retaliation from their employers.
What Counts as Retaliatory Behavior in the Workplace?
An employer can retaliate against an employee in many different ways. Some of these may be overt, but others can be more discreet. You may often be wondering how to tell if your boss is retaliating. Whether it's your direct manager or employer, workplace retaliation is taken seriously.
Here’s a short list of some possible workplace retaliation examples:
- Passed over for promotion
- Receiving less desirable duties or projects
- Reduction in salary benefits
- Reduction in hours
- Verbal or physical threats
When any of these retaliation examples, or similar behavior, is motivated because an employee engaged in a protected activity at work, it’s very likely that retaliation has occurred and can be legally pursued. However, it can be difficult to prove that the employer exhibited one of the retaliatory behaviors as a direct result of one of the protected behaviors. That's where an experienced employment law attorney can help.
What Makes a Strong Retaliation Case?
If you believe you’ve experienced retaliation and want to contact an employment law attorney, it’s good to come prepared with a succinct version of your story and some evidence to back it up. You don’t need to come to a consultation with every bit of evidence you’ve collected – and you shouldn’t – but you should have something to demonstrate to the attorney that your claim has legs.
You want to catch the attorney’s attention and make them believe that your claim can be pursued as a winning lawsuit.
What Evidence Matters in a Retaliation Lawsuit?
Whether you’re searching for an attorney to take your case or that attorney is fighting for you in court, evidence will play a key role in what becomes of your claim. Document and save memos, emails, or texts because they can prove very useful throughout the case process.
Here’s a list of evidence you can use to substantiate a retaliation claim:
- Voice mails
- Call logs
- Text messages
- Witness testimony
- Personal notes
- Contemporaneous journal entries
Avoid making audio or video recordings before speaking with an attorney. This is because California requires all parties involved in a conversation to consent to being recorded before recording can take place. Any evidence gathered that violates this rule may be inadmissible. Getting your employment law attorney's advice can be very helpful.
How Do I Win a Retaliation Lawsuit? It's not impossible.
Retaliation lawsuits can be won when the following is proven:
- The employee experienced or witnessed unlawful discrimination or harassment
- The employee engaged in a protected workplace activity
- The employer took adverse action against the employee in response
- The employee suffered some kind of damage because of this adverse action
The material fact of whether or not discrimination or harassment actually occurred is irrelevant. What typically holds weight is that an employee saw or experienced something they believed was wrong, reported it in good faith, and was punished for reporting it.
This is why an employment attorney will want to see evidence that you believed in good faith that what you witnessed was unlawful, even if that didn’t turn out to be the case.
For example, if an employee is reprimanded after reporting an employee for saying a racial slur, the fact that the employee misheard their coworker doesn’t negate the fact that the employer was keen to retaliate against someone reporting discrimination.
How Do I Find an Attorney Who Can Help?
If you believe you have a retaliation claim and want to speak with a lawyer, you’re at the right place. K2 Employment Law has many years of experience when it comes to fighting for employees whose rights were violated at work.
We help our clients navigate the legal process to seek justice in the form of fair and just compensation for damages against them. While no legal action can erase the harm an employer has caused, it can account for lost wages, benefits, and other forms of compensation – including reinstatement.