In addition to the laws in place to protect you from discrimination in the workplace, the law also protects you from retaliation. Your employer cannot penalize you for reporting some types of wrongdoing, including discrimination and harassment – this is called engaging in legally protected activity.
Workplace retaliation is defined as punitive actions by an employer toward an employee who engaged in legally protected activity. In addition to the overt actions, such as denying you a promotion or firing you, the law may also protect you against more subtle retaliatory actions against you.
When determining if actionable retaliation has occurred, it’s important to consider the circumstances of the situation and how it affects the employee. To some, an act might not seem retaliatory, but according to the US Supreme Court, it is retaliation in the legal sense if it would deter a reasonable person from making a complaint if he or she were in the same situation.
Keep in mind, every action toward you after you’ve complained or filed a grievance or in some way taken action against wrongdoing is not necessarily illegal retaliation.
For instance, if you engaged in some protected activity and as a result, if you previously had a friendly relationship with your supervisor, he or she began acting distant and more professionally toward you, that is not actionable retaliation. To be retaliation, the response must adversely affect the terms and conditions of your employment. So under the same circumstances, if you are suddenly overlooked for a promotion or asked to step down from a big project, it would be considered retaliation.
Subtle actions can also be considered retaliation, such as an overly critical performance review or micromanaging your work after you filed a report.
Federal law prohibits retaliation in the workplace when employees file complaints internally or externally about harassment or discrimination. Even if your claim turns out to be unfounded if you made it in good faith you still enjoy protection from retaliation.
You may also be protected from retaliation if you cooperate with an investigation by the EEOC or any other organization or testify as a witness in litigation. Additionally, there are federal laws in place that are designed to protect whistleblowers who report safety issues in the workplace or violations of FMLA laws.
New York’s Human Rights Law prohibits retaliation in employment, housing, and public accommodations. You can read more about it here.
What Should I Do If I Believe I’m a Victim of Workplace Retaliation?
The first thing you should do if you suspect you are facing retaliation is to speak to your supervisor or HR rep. You are free to ask for an explanation concerning what has happened and you are entitled to a legitimate explanation. If you don’t get one, state that you believe the actions were done in retaliation and ask that whatever is happening stop if it is ongoing (micromanaging, criticism) or be reversed (demotion, transfer to an unfavorable shift, etc.).
If your employer does not honor your request, you should speak to an attorney to discuss the next steps such as taking your concerns to the EEOC =—but that is only one avenue of potential redress
Keep in mind you’ll need to show evidence to support your claim of retaliation, so keep careful records of conversations and create a file of information of all documents to support your claim. For instance, if you suddenly receive a poor performance review after participating in an investigation, your previous positive reviews support your claim that the negative review was retaliatory and should be included in your file.
In addition to filing a report with the EEOC, and maybe even before you choose to do so, it’s a good idea to speak to an employment lawyer. He or she can assess your situation and help you determine if you have been a victim of retaliation.
For more information or to consult with a legal professional who understands state and federal laws regarding retaliation in the workplace contact Borrelli & Associates, P.L.L.C.
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