Employees who complain about discrimination or harassment are protected from retaliation. An employer may not punish employees for asserting their rights. However, retaliation still happens; in fact, more that a third of the discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) in the past few years include a retaliation claim.
If you file a lawsuit for retaliation, you'll have to prove three things:
All of the federal laws prohibiting discrimination (such as Title VII, Section 1981 of the Civil Rights Act of 1866, the Americans with Disabilities Act, and the Age Discrimination in Employment Act) also prohibit retaliation against employees who engage in "protected activity" under these laws.
There are two types of protected activity:
Learn more about Retaliation in the Workplace.
Any "materially adverse" action against an employee may constitute retaliation under Title VII and other civil rights statutes, if the action might deter a reasonable employee from making a complaint or otherwise engaging in protected activity. Because enforcement of the laws prohibiting discrimination depends on employees being willing to come forward with complaints, these statutes have been interpreted generously, to provide broad protection from retaliation.
Examples of materially adverse actions include demotion, discipline, firing, salary reduction, negative evaluations, transfer, change in job assignments, change in job duties, change in shift, or change in other terms and conditions of employment.
It's not enough for an employee to show that he or she engaged in protected activity and was subjected to a negative job action: The two events must be connected. For example, an employee who complains to the HR department of harassment by a customer, then is laid off with the rest of her team in a planned cost-cutting measure would have a tough time proving retaliation. If the adverse action is completely unrelated to the employee's complaint, there's no retaliation.
It can be tough to prove causation directly, unless the employer admits it. For example, if a manager says, "If you file a complaint with HR, you can forget about that promotion," then an employee can show a direct link between the two events. Usually, however, employees have to present indirect evidence of retaliation, such as:
Learn more about Asserting Your Rights at Work.
If you are facing workplace retaliation, you should consider a consultation with an employment lawyer. Retaliation can make an employee's work life miserable; it can also lead to job loss. An experienced attorney can help you figure out the best way to protect yourself and negotiate a resolution with your employer. An attorney can also make sure you meet all of the applicable deadlines to assert your rights (by, for example, filing a charge with the EEOC and a lawsuit).