Avoiding Retaliation When a Witness in an Employment Case

Employers are prohibited under federal and some state law from retaliating against employees for engaging in protected activities, or filing a complaint. These include what are referred to as whistleblower laws, where an employee charges their employer with a violation, such as safety regulations or public policy.

Avoidance of retaliation in a case where you are a witness is really more about legal protection than it is about actual avoidance. There are no guarantees that an employer won’t attempt to retaliate, but the laws that protect you from retaliation make it difficult to get away with as written.

Who Is covered?

Any employee who is opposing unlawful practices, has taken part in an investigation thereof, or requested reasonable accommodation on the basis of discrimination for race, color, religion, disability, national origin, age or sex. This extends to anyone with a close association with that employee, such as a spouse.

Adverse actions

Retaliation is a broad term that encompasses a number of adverse actions that an employer may take against an employee. Retaliation specifically refers to any actions that adversely affect your employment. Any one of these actions can be regarded as retaliation if they are taken as a direct result of the employee who participates in a protected activity or opposes discriminatory practices:

  • Termination, denial of promotion or refusal to hire.
  • Negative evaluations or bad references that are unjustified, threats.
  • Any action that may reasonably be expected would prevent a person from continuing their pursuit of justice.

Protected activities

Employees who are engaged in protected activities may not be discriminated against by their employers. These activities include:

  • Picketing in opposition to discriminatory practices.
  • Complaining about such practices.
  • Refusal to obey an order that the employee believes to be unethical, unlawful, or discriminatory in nature.
  • Filing charges of discrimination.
  • Participating in any proceedings stemming from an investigation of charges, or serving as a witness in such an investigation.

In practice, protecting yourself from retaliation by your employer is primarily about good documentation. If you’re passed over for a promotion, for example, subsequent to your serving as a witness against unlawful practices, it helps to have documented proof of your eligibility for the promotion. Conversely, and more importantly, your employer would have the burden of proof that you did not merit the promotion for legitimate reasons when faced with a claim of retaliation.

Weighing your options

In a potentially toxic and adversarial environment, you may want to evaluate whether it’s to your overall benefit to remain in your current position or move on, notwithstanding laws defending rights where you work. Legal protection does not guarantee a pleasant work environment, and not all adverse activity is covered by law. Gossip, social isolation, and other activities can make the workplace unpleasant but don’t rise to the level of unlawful retaliation.

If you do choose to remain at your current job, and want to avoid retaliation to the extent that it’s in your power to do so, avoid discussing the activity you opposed publicly, maintain a positive demeanor at work, and keep your performance level high in your current job duties.

Remember, an employer worth working for will address any reasonable and legitimate complaints professionally and with an eye toward improving relations with their employees. Your rights to fair treatment in the workplace should never be subjugated for fear of job security. The law protects both, to ensure that you have the right to oppose unlawful practices without fear of losing your job or other benefits.

If you feel that you are being retaliated against by your employer for filing a complaint against your employer, contact your local EEOC representative and a labor attorney in the state where you work.