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Those who say it cannot be done, should not interrupt those doing it.
— Chinese Proverb

Retaliation: The growing claim that is not always obvious

Retaliation in the workplace is once again the number one charge received in 2016 as reported by the U.S. Equal Employment Opportunity Commission (EEOC).  Retaliation accounts for 45% of workplace complaints.  But just what is retaliation and why should businesses be concerned?

Retaliation happens when an employer responds with negative employment consequences because an employee is engaged in a legally protected activity.  Anti-retaliation laws ensure that employees are free to raise complaints of potential violations without employers taking adverse action in return.

Employees must have a reasonable belief that something happening in the workplace is unlawful, even if they can’t describe it in the proper legal terms. If the claim is later proven to be unfounded, the employee is still protected as long as the complaint was made in good faith. An employee is protected if they participate in or have an opposition to any activity of the employer that the employee reasonably believes to be discriminatory. Per the EEOC, legally protected activity can take many forms and includes, but is not limited to:

  • Filing a complaint or cooperating in an internal investigation, EEO charge or lawsuit.
  • Communicating with a supervisor or manager regarding employment discrimination or harassment.
  • Refusing to follow orders that would result in discrimination or harassment.
  • Resisting sexual advances or intervening to protect others.
  • Requesting accommodation for a disability or religious practice.
  • Asking managers or co-workers about salary information to uncover potentially discriminatory wage practices.

Negative employment consequences can be overt or subtle.  They can manifest in termination of the employee as well as subtle things like missing out on opportunities given to other employees. Here are a few examples

  • Negative performance evaluations, when previous evaluations have been positive.
  • Increase in scrutiny of the employee’s work, without equitable justification.
  • Transfer to a less desirable position.
  • Inequitable application of rules and policies.
  • Changing work schedules that unfairly target the subject employee.
  • Verbal abuse; spreading rumors about the employee.
  • Denying the employee the same terms and conditions of employment as others receive.
  • Failure to hire or promote a clearly qualified individual.

To prove a claim of retaliation, the U.S. Supreme Court has said that the particular circumstances must be considered. If the negative employment consequences would deter a reasonable person from making a complaint, the action should be considered retaliation. Additionally, the employee needs to show a link between the legally protected activity and the negative employment consequences.

The best way to deter a claim of retaliation or any employment claim is to be proactive. First, consult your attorney.  An attorney is invaluable in keeping an investigation or employment compliance audit protected under the umbrella of attorney-client privilege. Then, contact Workplace FactFinders.  We are a cost-effective solution to help you put measures in place to avoid potential employment claims.  We also train managers and supervisors on employment topics to mitigate the risk of exposure to EEO-related claims.

For more information about our services contact Cynthia Fenton or Stephanie Woodhead at (844) 321-9733 or email us at

The information contained in this article is not legal advice and should not be relied upon as such.  Employers should consult their attorney for legal advice.

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