How to Recognize and Handle Retaliation in the Workplace

If you take a stand, make a complaint or file a claim against your company for its discriminatory behavior and then find yourself experiencing further discrimination or mistreatment in response, you could be experiencing retaliation. Under Title VII of the Civil Rights Act of 1964, retaliation against an employee for his or her refusal to engage in an illegal or unethical activity is illegal.

Retaliation does not only happen to discrimination victims. It can also happen to individuals who cooperate with investigations of discrimination claims by answering questions and acting as eyewitnesses. All individuals who engage in protected activities regarding discrimination claims are known as covered individuals, meaning they are covered by Title VII’s protection against retaliation.

Sometimes, it can be difficult to recognize retaliation when it occurs. An act of retaliation might happen years after an individual files a claim or makes a complaint against his or her company or it could be disguised as an action taken for another reason, such as a reorganization of the company.

Examples of Retaliation

In many ways, retaliation can look a lot like discrimination. It can even mirror the discrimination the victim experienced in the first place that caused him or her to file a complaint against the employer. Some examples of retaliation are:

  • Attempting to alienate an individual at work. This can be through leaving him or her out of important meetings and projects or assigning tasks to him or her that are outside his or her job description, below his or her pay grade, or otherwise pulls him or her away from the company and its operations.
  • Terminating or demoting an individual despite his or her strong performance.
  • Giving the individual poor performance reviews despite his or her strong performance.
  • Treating the individual poorly. This can include verbal abuse, social ostracization or regular harassment at the hands of supervisors or colleagues.
  • Passing over the individual for a promotion despite his or her fitness for the upgraded position.
  • Cutting the individual’s hours or pay.

The key difference between discrimination and retaliation is more than just when it occurs. It is why it occurs. Discrimination can occur for a range of reasons, stemming from anything from an attempt to assert one’s ideology to a misunderstanding of social and scientific facts. Retaliation, on the other hand, generally, occurs for one main reason: to assert control.

In the United States, workers have rights. These rights include the right to speak up against discrimination, the right to form a union and the right to work in a hostility-free environment. In some cases, an employer might feel workers asserting these rights threaten the company’s bottom line. The employer might attempt to coerce workers into complying with its decisions by retaliating against any employees it deems to be a problem. By threatening employees’ jobs and abilities to succeed in the workplace, an employer can effectively retain tight control over its workforce.

Whistleblowers and Their Rights

When an individual exposes an act of discrimination, unethical practices, illegal activities or a violation of health and safety codes at a company, he or she is what is known as a whistleblower. The term “whistleblower” was coined by activist Ralph Nader in the 1970s, evoking an image of a referee blowing a whistle to signify a foul play in a sporting event.

Whistleblowers are often at risk of facing retaliation from their employers. To combat this, the Occupational Safety and Health Administration (OSHA) has a protection program in place for whistleblowers under the OSH Act of 1970. Other laws that include protections for whistleblowers are the Sarbanes-Oxley Act of 2002 and multiple laws at the state level. Whistleblowers have the right to truthfully expose the indiscretions of their employers without fear of retaliation. They play an important role in the American workplace – without whistleblowers, thousands of corporate scandals and other violations might never come to light.

If You Are a Victim of Retaliation

Document every instance of retaliation that you face. As with any type of discrimination case, you will need to support your claim by proving you were a victim. The more evidence you have, the easier it will be to prove that you were a victim of retaliation.

Note the reasons your company gives you for its decisions. Has your company made any mention of your discrimination claim or cooperation with one as its reason for firing you? Also note the circumstances surrounding your termination. Are you being terminated or laid off despite having seniority over the employees chosen to stay? Your company can also retaliate against you in ways other than termination. If you experience any of the example behaviors mentioned above after participating in a discrimination claim or otherwise asserting your right as a worker, such as by starting or joining a union or refusing to engage in an illegal activity as part of your job, you could have the right to file a retaliation claim.

Contact an experienced employment attorney to discuss your case and go over possible legal options. If your attorney feels you have enough evidence to file a claim with the Equal Opportunity Employment Commission (EEOC), he or she will help you do this. The EEOC is tasked with investigating discrimination and retaliation claims in the United States and enforcing all federal laws related to these issues. Remember, this step should always come after first trying to work out your issue with your company’s Human Resources department. Usually, retaliation and related issues can be handled here. When they cannot, you need to work with an attorney who can provide you with expert legal advice and representation in the event your claim has to go to court. In this scenario, a judge and jury will hear your claim and determine if any laws were violated. If so, you may receive a settlement to compensate you for any losses you experienced as a result of the retaliation.