Can My Employer Retaliate Against Me?

Posted on November 6, 2017 in Employment Law

Most employees are aware that there is a legal framework in place to protect them against harassment and discrimination in the workplace, and to provide a form of redress in law if an employer violates these statutes.

However, many employees are discouraged from speaking up or taking action against their employers out of fear of retaliation-being wrongly punished or penalized by the employer for asserting their rights under the law.

Fortunately, there is also a legal framework in place to stop this from happening, and to protect employees from retaliation for making a complaint, or assisting in the investigation of a complaint made by a colleague. This means that your employer cannot legally retaliate against you or penalize you for exercising your right to work free from harassment or discrimination.

In this article, we will explain what does and does not constitute retaliation on the part of an employer, and what to do if you have experienced illegal retaliation in the workplace.

What Is Employee Retaliation?

The legal definition of retaliation is an employer taking an adverse employment action in response to an employee engaging in a legally protected activity, such as making either an internal complaint or a legal complaint about harassment or discrimination.

Your right to complain and seek redress if you report harassment or discrimination is defined as a legally protected activity, which means that you should be free to do so without having to worry about your employer getting revenge or punishing you for your actions.

However, this does not mean that employers always follow the law-and some will retaliate against persons who report a problem, or support the complaint of another employee, and this retaliation is illegal. Some forms of retaliation are very obvious, and easy to prove-while others can be more subtle and complex.

The benchmark for judging the illegality of retaliation is if the employer’s actions would serve to deter any reasonable person from making a protected complaint and exercising their rights to do so.

Retaliation Protection In Law

The Equal Employment Opportunity Commission is the governing body that sets and upholds the laws prohibiting retaliation against employees who exercise their right to report and complain about harassment and discrimination.
This is protected under U.S Code Title 42, Chapter 126, Sub-section 12203: Prohibition Against Retaliation and Coercion.

Examples Of Unlawful Retaliation By San Diego Employers

Some examples of retaliation that are forbidden under U.S. law are as follows:

• Firing an employee for making a complaint, including firing by means of constructive dismissal.
• Demoting or disciplining the complainant for their complaint, or reducing their wages.
• Reprimanding an employee who has made a complaint, or encouraging them to withdraw their complaint.
• Unfairly penalizing the complainant by means of a poor performance review, or other form of reprimand that was not warranted by the employee’s actions.
• Abusing the complainant either verbally, physically, or by written or digital media such as notes and emails-or otherwise creating a hostile work environment.
• Making legal counter-threats against the employee, such as threats pertaining to the immigration status of a complainant or their family.
• Transferring the employee to a less desirable position or role.
• Increasing scrutiny of the employee, such as by making them work under direct supervision or monitoring when this is unnecessary.
• Spreading rumors or untrue information that will negatively impact upon the employee.
• Excluding the employee from working activities that the employee would otherwise have been involved in, such as training or meetings.
• Purposely making it harder for the complainant to perform their role, such as by deliberately changing their shift patterns to a model that will conflict with their responsibilities to their family.
• Treating family members of the complainant who also work for the same organization negatively by means of any of these forms of retaliation.

This list is not exhaustive, and there are many other forms of retaliation that an employer might potentially take as well.

Examples Of Non-Retaliatory And Non-Discriminatory Actions By Employers In San Diego

It is also a good idea to understand that not all actions on the part of an employer are classed as retaliation in law, and that some actions or situations that the complainant or employee might be unhappy with may not relate to their complaint, nor serve as retaliation for it. Below are some examples of non-retaliatory or non-discriminatory actions:

• Firing or dismissing an employee for reasons related to their performance or work contract-such as poor performance, or a working contract ending that would not be renewed regardless of the complaint.
• Disciplining or penalizing the complainant for genuine issues not pertaining to their complaint.
• Requiring a shift-based employee with no contracted shift pattern or the requirement of flexibility to work on a different shift-unless this change is instigated to in order to separate the complainant from a person they complained against, in which case, this is classed as retaliation.
• A change in how a supervisor or target of a complaint communicates and deals with the complainant-such as becoming more formal and professional-providing that their conduct is still appropriate and does not prevent the employee from being able to do their job.

Essentially, if the action in question is appropriate and warranted, and does not create a situation that would deter a person from making a complaint, it is not classed as retaliation.

What To Do If You’ve Experienced Retaliation In San Diego

If you have been the victim of retaliation on the part of an employer for making an internal or external complaint about discrimination or harassment-or if you have been retaliated against for supporting another employee’s complaint-document the incident or incidents in question and seek legal advice.

Walker Law is a specialist employment attorney in San Diego, and we can help you to establish the basis of a claim for employee retaliation, and seek redress in law to ensure that you are not penalized for exercising your rights to work free of harassment and discrimination in the workplace.
Contact Walker Law now for advice and support.