What Is Workplace Retaliation? A Guide for Employers

Employers must take employee complaints seriously and avoid doing anything that appears to attack the person who filed the complaint. Employees who prove workplace retaliation may be entitled to back pay, reinstatement, and even punitive damages.

This guide will walk you through the key elements of a retaliation claim and the laws that apply. If you’re already facing a complaint, connecting with a local employment lawyer can help you navigate the process and protect your business.

What Are the Three Elements of a Retaliation Claim?

The U.S. Equal Employment Opportunity Commission (EEOC) handles employee reports of harassment and discrimination. For most EEOC-enforced employment discrimination retaliation claims, a worker must show three elements:

• Protected activity: The employee engaged in a legally protected activity, such as filing a complaint or participating in an investigation
• Adverse action: The employer took an adverse employment action against the employee, such as firing or demotion
• Causation: There is proof, either direct or circumstantial, that the employer took the adverse action because the employee engaged in the protected activity

These definitions apply to anyone who participates in the complaint and investigation, as well as the initial filer. For instance, employees who interview with the EEOC about a harassment complaint can’t be retaliated against by their employer. Threats of possible retaliation for complying with an investigation are also not permitted.

What Is a Protected Activity?

A protected activity is any action an employee takes that’s safeguarded by law. Reporting illegal conduct is a primary example, but far from the only one. Even in at-will states, employers can face a retaliation claim for taking adverse action against an employee related to:

• Disability or a request for reasonable accommodations for a physical or mental disability (Americans with Disabilities Act)
• Request for unpaid leave to care for a family member or recover from a serious medical condition (Family and Medical Leave Act)
• Age if over 40 (Age Discrimination in Employment Act)
• Race, religion, gender, national origin, sexual preference, or orientation (Title VII of the Civil Rights Act, other state laws)

One of the most well-known protected activities is whistleblowing. A whistleblower is any employee or former employee who reports a company’s mismanagement or misconduct to internal or outside authorities. A common example is someone who reports workplace safety concerns to a federal or state agency. This differs from an insider who leaks trade secrets to a competitor.

Whistleblower reports can lead to further investigations by outside agencies. Some government agencies have whistleblower hotlines to encourage employees to report known or suspected violations. In turn, the government created whistleblower protection acts associated with the agencies to protect workers who make these reports.

What Is an Adverse Action?

According to the EEOC, retaliation is the biggest cause of complaints. The EEOC has found that in many cases, a worker’s original claim failed to establish any grounds for the complaint, but the retaliation claim did. In other words, the employee may have made an unfounded claim, but the employer’s retaliation led to a valid legal issue.

Intentional retaliation occurs after an investigation and involves an employer deliberately changing an employee’s work status for the worse after a complaint. Being the subject of an EEOC investigation can be humiliating for businesses of all sizes. If the claim is unfounded, it’s natural to be angry. However, owners and managers must resist the temptation to strike back.

Unintentional retaliation happens when an employer tries to help but ends up making things worse. For instance, after an employee complains about sexual harassment by a supervisor, the employer moves the employee to a new location during the investigation. By focusing on the complainant rather than the alleged wrongdoer, the employer creates the appearance of retaliation.

Retaliatory actions can be direct actions against the employee. They can include:

• Firing if protected activity was the but-for cause of the firing
• Demotion or reassignment, especially if it comes with a pay cut
• Cutting hours or job responsibilities
• Negative performance reviews
• Constructive discharge (making working conditions so intolerable the employee quits)

Courts have also ruled that materially adverse actions are retaliatory. These can be things like:

• Moving a worksite to a less desirable location
• Giving the employee too much or too little work or unrealistic deadlines
• Micromanaging or excessive check-ins via Teams or email.

These materially adverse actions are retaliatory if the employee believes they are being carried out to force them to quit.

Laws Prohibiting Workplace Retaliation

Many state and federal regulatory agencies depend on whistleblowers to kickstart their investigations. Because companies engaged in fraud or other illegal activities may retaliate against employees who report them, government agencies offer strong protections for workers who come forward. Let’s take a closer look at some of the most important ones.

Federal Anti-Retaliation Laws

• The Occupational Safety and Health Administration (OSHA), a division of the U.S. Department of Labor (DOL), oversees workplace safety and uses the Whistleblower Protection Program to support and protect reporters of unsafe working conditions under the Occupational Safety and Health Act
• The Securities and Exchange Commission (SEC) enforces financial regulation through the Office of the Whistleblower
• The Whistleblower Protection Act protects federal employees who report misconduct or retaliation
• The Dodd-Frank Act offers protection to whistleblowers reporting corruption and insider trading
• The Sarbanes-Oxley Act protects whistleblowers who report financial crimes to the SEC

Qui Tam Lawsuits

This refers to a possible penalty facing employers who defraud the government. Qui tam actions allow private individuals, including whistleblowers, to bring legal action if they know their employer is defrauding the government. The False Claims Act protects workers from retaliation for lawful efforts to stop violations, and a person who brings a successful qui tam action may receive a share of the proceeds.

State Anti-Retaliation Laws

Most states protect individuals who report violations of state laws. Many whistleblower provisions cover fraud involving state Medicare or related public health programs. State anti-retaliation laws also protect people who file discrimination or harassment claims against their employers. Filing an employment discrimination claim is not the same as whistleblowing, but the law protects both activities and prevents reprisals against those who report issues.

How Can Employers Avoid Retaliation Claims?

The easiest way to avoid retaliation claims is to have a strong employment policy. Give all new workers an employee handbook during onboarding.

Your handbook should explain your harassment policy, how to report claims, and workplace discipline. Employees must know what triggers a poor performance review and what disciplinary action involves. Your workers should always be able to access their personnel files.

If you receive a complaint, your best course is to have a retaliation policy that describes your reporting and investigation process. In addition:

• Take all complaints seriously: Don’t ignore complaints. Treat each complaint with the same level of respect and conduct a fair and transparent investigation to find the truth.
• Keep all complaints confidential: Limit access to complaint information to those who need to know. In a small company, you may want to have outside help with your investigation.
• Keep records of all complaints: Keep records of your full investigation, even if the complaint is unfounded. You’ll need a paper trail of what you did if there are future legal proceedings.

If you have any legal concerns during an investigation, consider reaching out to an employment law attorney for legal assistance.

Workplace Retaliation Issues? Get Help From an Employment Lawyer

If you’re dealing with a whistleblower or retaliation claim, it’s critical to put emotions aside and handle it correctly. An employment law attorney can help you navigate this complex situation with precision and care. They’ll examine the claim, explain your options, and ensure the process is conducted fairly.