Hang on – let’s talk about what actually qualifies as illegal retaliation.
The first step in protecting yourself and your job is to understand exactly what legal (EEOC) retaliation is – not just our everyday understanding of “retaliation.”
Retaliation is the most frequently alleged basis of discrimination in federal litigation, and for good reason: because the law is designed to ensure that the rights granted by the Equal Employment Opportunity Commission (EEOC) are enforceable. If an employee is afraid to speak up about a problem, the protections against discrimination disappear.
First: What is Retaliation?
At its core, retaliation occurs when an employer takes a negative action against an employee because that employee exercised their legal rights to be free from employment discrimination.
The federal laws – including Title VII of the Civil Rights Act, the ADA, and the ADEA – do not just prohibit discrimination based on race, sex, nationality, age, or disability; they also make it illegal for an employer to “punish” you for asserting those rights.
Seems obvious enough. So what is NOT retaliation?
Most laws prohibiting retaliation against an employee only apply where the “retaliation” occurs in response to the employee protecting their rights to be free from discrimination. So, for example, if you complain that you feel you are being discriminated against, and then your boss or manager starts treating you differently – this is illegal retaliation.
What’s not illegal retaliation is when an employee complains about everyday work problems (not discrimination) and then that employee experiences “retaliation.”
It’s a similar situation for “hostile work environment.” “Hostile work environment” generally only rises to a legal claim when the behavior complained about is connected to complaints of discrimination or a similar protected characteristic.
Thus, simply having a “toxic boss” is not generally illegal. This can be extremely counter-intuitive – “my boss is a jerk to everyone!! You can ask anyone in my office!! Tons of people have quit because of how awful this person is to everyone!!” is actually a defense for the employer. As long as a jerk is a non-discriminatory jerk, it’s perfectly legal to be a workplace jerk.
It’s critical to understand these elements so that you can document your situation appropriately and set yourself up for the strongest possible legal claim.
Thus, the strongest way to set up your case is to explain why you believe any “retaliation” you are experiencing is connected to your complaints of discrimination.
Three Elements to a Retaliation Claim
To prove a case of retaliation (called a “prima facie” case), you need three specific elements:
1. Protected Activity
You must have engaged in what the law calls “protected activity.” The most common is simply complaining about discrimination. “Discrimination” is not a magic word that you need to use – your complaint will suffice if you complained about one group of people being treated differently from yourself or a group of people that you fall into.
Another protected activity is filing formal complaints, including EEOC complaints. If you file an EEOC complaint about discrimination and then you experience ongoing or increased hostile behavior at work, this is going to be a strong retaliation claim.
Extremely important note – retaliation is a separate, stand-alone claim from the underlying discrimination. Thus, first, don’t suffer in silence. If you think you’re being discriminated against – speak up. This sets up the following potential claim for retaliation. Second, even if your original complaint of discrimination ultimately is not found to be valid, you can still have the secondary claim for retaliation.
For example – You go to HR and complain that ever since you got a medical diagnosis, you feel like your manager has been treating you differently or sidelining you. This is a complaint of discrimination. Even if your manager legitimately had no idea about your medical issue – and therefore could not have been discriminating against you on that basis – if your manager heard about your complaint and then treated you differently, this is retaliation (even without the underlying discrimination).
2. Materially Adverse Action
The employer must have taken an action against you that would “dissuade a reasonable worker” from making or supporting a charge of discrimination. While the most obvious examples are firing or demotion, the Supreme Court has clarified that an action doesn’t have to be “ultimate” (like termination) to be retaliatory.
Examples of adverse actions include: increasing scrutiny or micromanagement, being excluded from work events that you would normally have been included in, changing your responsibilities, or getting an unjustified lower performance rating.
3. Causal Connection
Remember to explain how you think the retaliation is connected to your complaints of discrimination. The employer is going to try to argue that any adverse action is a “business decision” and not retaliation for your discrimination complaint. They might argue that you were demoted for poor performance or fired because “your job was eliminated.” Be prepared to get ahead of these arguments and connect the dots between the complaint and the retaliation.
This is probably the most common-sense part of the claim. Would the average person believe you if you told them about how you complained about your boss’s discrimination and then you suffered something negative at work? Common angles are the timing – how close in time was the complaint and the adverse action? The believability – if they’re accusing you of poor performance, is this credible? What evidence do they have? Comparators – how are you being treated compared to your peers? This can be extremely strong evidence.
The 2024 United States Supreme Court decision in Muldrow v. City of St. Louis.
In 2024 Muldrow v. City of St. Louis significantly lowered the bar for employees to bring Title VII discrimination and retaliation claims. Before this ruling, many lower courts required employees to prove that an employer’s action caused a “significant” or “material” disadvantage – such as a cut in pay, a rank demotion, or a loss of fringe benefits. In Muldrow, this standard was lowered so that an employee needs only to show that they suffered “some harm” or a “simple injury.” Obviously, this is a much simpler (and more fair) standard.
Protect yourself.
Document and complain. Keep notes about what discrimination you feel you are experiencing, and dates and names for conversations. Keep track of who you complained to and when. Don’t just complain to your peers – this is not attributable to the company. Complain to your supervisors or HR and keep records of these communications. This is the best way to protect yourself and to ensure that you have strong retaliation claims.
For more information about this topic or to contact one of our employment attorneys, contact Carey & Associates, P.C. at info@capclaw.com or call (203) 255-4150.
