1. What is workplace retaliation?

Unlawful workplace retaliation occurs when an employer takes an adverse action against an employee after an employee has engaged in a protected activity. It’s an unfortunate situation in which an employee is ultimately punished for doing the right thing and reporting behavior/activity such as discrimination or harassment.

The laws protecting employees from workplace retaliation apply to all local and state governmental employers and private companies that have 15 or more employees.

2. What is a protected activity?

If an employee files a discrimination complaint or opposes discrimination in the workplace (as further discussed below), these actions are protected under the law. A discrimination complaint in Texas, for example, may be based on:

Opposition Activity

In addition to the protected activities, the Equal Employment Opportunity Commission (EEOC) has expanded its definition of protected activities to include opposition activity, meaning that an employer cannot retaliate against an individual for “opposing” an unlawful practice.

Therefore, an employer must not punish an applicant or employee for communicating opposition to a perceived equal employment opportunity violation. The EEOC has provided these examples of opposition activity:

  • Threatening to complain or complaining about alleged discrimination against oneself or others
  • Providing information in an employer’s internal investigation about an equal employment opportunity matter
  • Refusing to obey an order reasonably believed to be discriminatory
  • Advising an employer on equal employment opportunity compliance
  • Resisting sexual advances or intervening to protect others
  • Passive resistance (allowing others to express opposition)
  • Requesting reasonable accommodation for disability or religion
  • Complaining to management about equal employment opportunity-related compensation disparities
  • Talking to coworkers to gather information or evidence in support of a potential equal employment opportunity claim

The protection for opposition activity is limited to individuals who act with reasonable good-faith belief that the conduct opposed is unlawful or could become unlawful if repeated – meaning that it can be reasonable to complain about behavior that is not legally harassment or discrimination at the time.

3. What qualifies as an adverse action?

Adverse employment actions take many forms. An action taken by an employer toward an employee qualifies as an adverse employment action if a reasonable employee would have found the action materially adverse, meaning it might have deterred a reasonable employee from making or supporting a charge for discrimination. Some examples include:

  • Termination/firing
  • Refusal to hire
  • Demoting
  • Failure to promote
  • Placement on administrative leave
  • Loss of pay
  • Increased surveillance of employment
  • Threats

Therefore, in a retaliation case, legal proof of retaliation requires that:

  1. an individual engaged in a prior protected activity;
  2. the employer took an adverse action; and
  3. retaliation caused the employer’s action.

Proving workplace retaliation is not an easy task, but don't let your employer punish you for exercising your rights.

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If you believe that you’ve been victim to workplace retaliation, please call the employment lawyers at Herrmann Law, PLLC at 817-479-9229 to speak to an experienced employment attorney.