What Is Retaliation?
Retaliation, simply defined, is when an employer or supervisor makes an adverse employment decision because an employee exercised their rights in a way the employer didn’t like. For example, if you felt you were being sexually harassed and you filed a complaint against your supervisor, and then that supervisor fired you for filing the complaint, that would be a prime example of retaliation.
However, you don’t have to go through something as extreme as being fired for your employer’s actions to be considered retaliation. While extreme workplace punishment is often what comes to mind first, retaliation can take many more forms than just being fired. In fact, the Equal Employment Opportunity Commission (EEOC) defines retaliation as:
“punishing job applicants or employees for asserting their rights to be free from employment discrimination including harassment. “
In short, anything that could be considered “punishment” may be grounds for a retaliation case. This includes things like being denied a promotion, being demoted, being reassigned, or even just being reprimanded or put under heavier scrutiny.
What Can Lead To Retaliation?
For a punishment to be considered retaliation, you (as the employee) must have first asserted your rights in some way. Some of the more common activities that lead to employers retaliating include:
- Filing a claim with the EEOC
- Requesting FMLA Leave
- Filing for Worker’s Comp
While that’s not an exhaustive list of possible activities that qualify as asserting your rights, those three are some of the more common ones. If you aren’t sure whether your situation qualifies as retaliation, we encourage you to get in touch with us. We’ll help determine whether you may have a case. In the meantime, we’ll dive a bit deeper into the three most common assertions of employee rights that are retaliated against.
Filing With The EEOC
Filing with the EEOC is generally associated with racial discrimination. While that’s certainly one of the reasons you may file with the EEOC, there are many others as well. Other forms of discrimination may include gender, religious, age, disability, national origin, citizenship, veteran status, and more. And EEOC protection doesn’t stop there. You are also protected from retaliation for participating in an EEOC investigation, including testifying or providing evidence for someone else’s claim.
If you’ve been punished for your interaction with the EEOC, then it’s possible that you may have a case for retaliation.
There are many other behaviors that go beyond EEOC claims that you cannot be punished for. These include reporting harassment, protecting others from harassment, requesting accommodations for disability or religion, and refusing to follow discriminatory orders.
For example, if you observe holy days as part of your religion (such as the Sabbath, for example) your employer cannot punish you for requesting that day off. You also cannot be punished for refusing to give sub-par service to a certain group of people based on their gender, religion, race, sexual orientation, etc. In many cases, these issues don’t make it to the EEOC, but you are still protected by law against retaliation for them.
Requesting FMLA Leave
If you find yourself in circumstances where it’s necessary for you to take FMLA leave, you are allowed to take it without any employment repercussions. Once again, this includes any sort of “punishment” that’s intentionally given to make your employment life harder. These actions can range in scope from firing to a demotion to an unnecessary increase in your workload.
Filing For Worker’s Comp
Workers Comp can be expensive for employers, and most want to minimize the number of Worker’s Compensation claims that come from their employees. However, using punishment as a means to discourage filing for it could result in a retaliation case. If you’re accidentally injured on the job and qualify for Worker’s Comp, it is against the law for your employer to punish you for filing for it. Again, we encourage you to contact us if you think you may have been unfairly treated, and we will help you determine whether you have a case.
What Can I Do If I’ve Been A Victim Of Retaliation?
If you think you’ve been the victim of retaliation, we recommend that you consult a lawyer to see whether you have a case. Here at The Blankenship Firm, we are happy to provide consultations on potential retaliation issues. If, after consulting with a lawyer, it looks like you do have a case, the next step is to file a claim with the EEOC. Be aware that retaliation is quickly becoming the most common claim made with the EEOC, and they can’t take every case they receive. If they decide not to take your case, you can still sue the employer directly, potentially recovering lost wages, back taxes, promotional opportunities, or more.
Please note: nothing in this article should be taken as legal advice. However, we hope it gives you reliable information on whether you may have been a victim of retaliation. If you still aren’t sure, then please contact us! We would be happy to work with you to ensure your rights are protected and that you get the fair treatment you deserve.