Understanding Unlawful Retaliation in Employment

Retaliation in the workplace happens when employers punish workers for engaging in protected conduct. Conduct protected from retaliation includes asserting your own employment rights, acting with others to address terms and conditions of employment, and blowing the whistle on unlawful or dangerous conduct. 

Retaliation becomes unlawful when the employer's punishment, or adverse action, would deter reasonable employees from engaging in protected conduct. When employees prove that they suffered an adverse action because they engaged in protected conduct, they can recover substantial damages.

Types of Protected Conduct

The law safeguards employees who engage in particular activities, known as protected conduct. Employers are prohibited from retaliating against employees who engage in protected conduct, which can include:

• Whistleblowing. Reporting illegal activity within the company to superiors or public authorities, as well as cooperating with investigations.
   
• Filing a Discrimination or Harassment Claim.
   
• Participating in Discrimination Proceedings. Participating in discrimination proceedings includes being a witness in an investigation, a party to a lawsuit, or a participant in a hearing related to claims of discrimination or harassment.
   
• Reporting Wage and Hour Violations: Complaining about not being paid minimum wage, overtime, or other wage and hour violations.
   
• Requesting or Taking Disability or Family and Medical Leave: Employees who request leave under the Family and Medical Leave Act (FMLA) or the Americans with Disabilities' Act (ADA), or who take authorized leave under the  FMLA or ADA, are protected from retaliation.
   
• Reporting Occupational Safety and Health Violations: Employees are protected when they report unsafe or unhealthy working conditions to their employer, an appropriate governmental authority, or the Occupational Safety and Health Administration (OSHA).
   
• Union Activity. Employees are protected from retaliation for joining, organizing, or supporting a labor union, or for collective bargaining.
   
• Reporting Securities Fraud. Under the Sarbanes-Oxley Act and the Dodd-Frank Act, employees in publicly-traded companies are protected when they report securities fraud.
   
• Military Service or Duty. The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects civilian job rights and benefits for veterans and members of Reserve components.
   
• Reporting Health and Safety Hazards. Employees are protected when they report health and safety hazards to appropriate authorities or within the company.
   
• Exercising Workers' Compensation Rights.
   
• Reporting Violations of the Americans with Disabilities Act. Employees are protected from retaliation for reporting ADA accessability or accommodation violations.
   
• Engaging in Concerted Activity under the National Labor Relations Act. This covers, for example, joining with others to ask for better pay or working conditions, and can include posting about work conditions on social media.
   
• Requesting an Accommodation for a Religious Belief.

If you are not sure whether conduct is protected or not, consult with an attorney. This is particularly helpful before engaging in the conduct. In addition, conduct might not be protected under a particular law unless the employee takes certain required steps, like submitting a complaint in writing under Ohio's whistleblower's law.

Finally, the time to take legal action may be short. Retaliation claims filed with OSHA for reporting unsafe conditions or violations of environmental laws, for example, must be filed within 30 days.

Size of Employers Subject to Anti-Retaliation Laws

Under federal law in the United States, employers with 15 or more employees are subject to anti-retaliation laws such as Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA). The Fair Labor Standards Act (FLSA), which covers wage and hour provisions, applies to employers of any size.

However, many state laws also provide protection against retaliation, often extending these protections to employers with fewer employees. Businesses in Northeast Ohio are covered by Ohio's Revised Code Chapter 4112, which covers employers of four or more employees.

How to Prove Retaliation

To prove retaliation has occurred, an employee must typically demonstrate that:

• They were engaged in a protected activity.
• They suffered an adverse employment action.
• There is a causal connection between the protected activity and the adverse action.

An "adverse action" can take many forms, including:

• Termination: An employee is fired soon after reporting discrimination or harassment.
• Demotion or Pay Cut: An employee's rank or wages are lowered because of their participation in protected activities.
• Negative Performance Reviews: Employers give unjustifiably poor reviews to employees who've reported misconduct.
• Hostile Work Environment: The employer creates or allows a hostile work environment to punish an employee.

As a general rule, an adverse action must be be sufficiently severe to chill, or deter, the conduct at issue. As such, an unwarranted poor performance review, by itself, might not amount to an unlawful adverse action.

An edge case involved an employee suspensed for 37 days for allegedly complaining about harassment. The employer later rescinded the suspension, paid the employee for the time it suspended her, and argued that, since it repaired the harm, it could not be an adverse action. The US Supreme Court disagreed and found the conduct unlawful, since it would deter a reasonable worker from complaining about harassment.

Remedies for Retaliation Victims

If employees prove that they suffered an adverse action because they engaged in protected conduct, they can recover significant remedies. They include:

• Reinstatement: The court can order the employer to place the employee back in the job with the same pay, seniority and other benefits they would have earned but for the retaliatory discharge.
• Back Pay: Employees who win retaliation cases typically recover the wages and benefits they lost due to the retaliatory termination or demotion.
• Front Pay: If a court finds that an employee is entitled to reinstatement, but reinstatement is not feasible, the court can instead order the employer to continue paying for future lost wages for a time sufficient to enable the employee finds a similar job.
• Compensatory Damages: Depending on the law that protects the conduct at issue, employees who prove retaliation can recover compensation for the emotional pain, suffering, humiliation, distress, anxiety and anguish that it caused.
• Punitive Damages: These are awarded in cases of particularly egregious conduct by the employer to punish the employer and deter other employers from engaging in similar conduct.
• Attorney’s Fees and Costs: Also depending on the law at issue, the court may have the power to order the employer to pay the employee's legal fees and costs associated with the case.

Conclusion

Unlawful retaliation in employment is a grave violation of employees' rights. If you believe you're a victim of unlawful retaliation, consult with an experienced employment law attorney to explore your options and protect your rights.

Employment Law Partners advise employees and companies about their rights and duties related to all forms of retaliation. We represent clients in cases involving terminations, suspensions, demotions, denials of promotion, hostile work environment claims, and other retaliation claims.

If you were the victim of retaliation in Ohio, you must file a charge with the Equal Employment Opportunity Commission (EEOC) or the Ohio Civil Rights Commission (OCRC) before you can file your case in court. We can advise you about which agency to file with, what to include in a charge of discrimination, and what to expect throughout the process. We also strongly recommend you contact us for legal advice as early as possible -- ideally before reporting misconduct by your employer or before responding to an employee’s complaint.

Understanding Unlawful Retaliation in Employment Articles