Retaliation in the Workplace
The law encourages employees to come forward when they believe their employment rights are being violated by making it illegal for your employer to punish you for voicing your concerns. Your employer may not retaliate against you for complaining about discrimination, harassment, or other violations of your rights in the workplace. The law also protects from retaliation employees who participate in investigations into their employer’s alleged discrimination, harassment, or other unlawful actions.
Your employer violates the law if it negatively or adversely impacts your employment as a result of your registering a complaint even if your complaint ends up being unfounded. As long as you have a genuine and reasonable basis for believing your complaint is legitimate, your employer may not retaliate against you for voicing your complaint. Sidney L. Gold & Associates is the Philadelphia employment lawyer that can help you with your potential retaliation claim.
Instances of retaliation include, but are not limited to:
- Unwarranted Written or Verbal Warnings and/or other Disciplinary Actions
- Unjustified Negative Evaluations
Example: You complain to your employer’s Human Resources department about sexual harassment. Shortly thereafter, your employer issues you a written warning based on poor performance despite the fact that you always received positive performance reviews prior to your complaint.
- Salary Reduction
- Denial of Promotion
- Changes in Hours, Job Duties, and/or Job Assignment
Example: You complain of harassment by another employee, which is substantiated by an investigation. Your employer moves you to another department after the incident.
Example: You are interviewed by your employer’s Human Resources representative during the course of an investigation into another employee’s complaint of race discrimination. The next week your employer terminates you after learning that you confirmed some of the employee’s allegations.
Example: A campaign of retaliatory harassment or hostility constitutes a violation of your rights if it is pervasive or severe enough to interfere with your ability to do your job.
Sometimes it is very obvious that an employer’s action is negative, such as termination or demotion. Other times, it is more subtle. The U.S. Supreme Court has held that in those cases, you must consider the circumstances of the situation. For example, the threat of a change in job shift may not be objectionable to every employee, but it could be very detrimental to a parent with young children and a less flexible schedule. As long as the employer’s adverse action would deter a reasonable person in the situation from making a complaint, it constitutes illegal retaliation.
Protected Activity or Conduct under Federal Law
Title VII of the Civil Rights Act of 1964 contains an anti-retaliation provision. It forbids an employer from discriminating against an employee who engaged in protected activity that opposed any practice made unlawful by Title VII or made a charge, testified, assisted, or participated in a Title VII proceeding or investigation.
Opposition to a practice believed to be unlawful discrimination is protected from retaliation as long as it is based on a reasonable, good-faith belief that the complained of practice violates anti-discrimination law. Examples of protected opposition include:
- Complaining about alleged discrimination against oneself or others
- Threatening to file a charge of discrimination
- Peace protests (picketing) in opposition to discrimination
- Refusing to obey an order reasonably believed to be discriminatory
- Requesting a reasonable accommodation based on religion or disability
Opposition is protected conduct if it is deemed “reasonable”. It is not protected from retaliation under federal law if violates established employer policy, willfully undermines the employer’s business activity or interferes with the employee’s job performance so as to render the employee ineffective. Similarly, it is considered unreasonable if the employee refuses to comply with non-discriminatory directives or engages in other unlawful activities such as abusive or violent protests or other acts or threats of violence.
Participation in an employment discrimination proceeding is protected activity even if the proceeding involved claims that ultimately were found to be invalid. Examples of participation include:
- helping co-workers with discrimination claims
- talking to a Equal Employment Opportunity officer
- filing a complaint internally or with the Equal Employment Opportunity Commission
- cooperating in an internal or external investigation
- consulting with or hiring an attorney to file a complaint
Other Workplace Retaliation Protections
Some examples of personal conduct on the job that are protected from retaliation are:
- Absences pursuant to the Family and Medical Leave Act (FMLA) to care for a spouse or child;
- Claims made to exercise an individual’s rights under the Americans with Disabilities Act (ADA);
- Participation in the employer’s Employee Assistance Program for depression, substance abuse, etc.; and
- Voicing concerns about conditions that are possibly detrimental to the safety and health of the employee.
“Whistleblower” Laws make it illegal for employers to punish an employee when the employee exposes a violation of those laws. Some examples include:
- retaliation for union involvement
- retaliation by a union
- retaliation under workers compensation law
- retaliation involving unemployment law
- retaliation dealing with public policy or common law
If you are employed in Philadelphia or nearby Cherry Hill, Camden or Wilmington, or other cities in Pennsylvania or New Jersey, and you believe you are the victim of adverse actions by your employer in retaliation for protected actions under Title VII or any other state or federal law, contact Sidney L. Gold & Associates to discuss your rights and remedies with an experienced New Jersey employment attorney.
Third-Party Claims under Title VII of the Civil Rights of 1964
In a recent U.S. Supreme Court case, the Court held that a third party may be protected from retaliation in the workplace under certain circumstances. In that case, a man was fired just weeks after his fiancé filed a sex discrimination claim against their shared employer. Although, a retaliation claim is usually brought by someone that is engaged in protected activity, such as the person who filed a discrimination claim, the Court found that the fiancé had standing to bring the claim because he came within the “zone of interests” protected by Title VII, he was the “person aggrieved”, and to not give him a claim would undermine Title VII. For details on this groundbreaking case, please read Brett Condon’s Article in the News section.