By Chris Avcollie,
In the ancient world, the law of “An eye for an eye…a tooth for a tooth…” or the Lex Talionis, the law of retaliation, embodied the principle of reciprocal justice for injuries or damages. While we associate this principle with a brutal or severe the concept of justice, the Lex Talionis was actually a progressive advance in that it introduced the concept that the punishment should fit the crime or harm done. This was preferable to the even more ancient principle of, “Make one mistake, lose your entire head…” which ruled the even more ancient world. To our modern sensibilities, both concepts seem draconian.
In the American Workplace, these most ancient concepts of retribution are both alive and well. The practice of vicious and unbalanced workplace retaliation by employers or co-workers for the actual or perceived conduct of employees is a daily reality. According to the EEOC, retaliation is, “[t]he most frequently alleged basis of discrimination in the federal sector and the most common discrimination finding in federal sector cases.” Some data suggests approximately 45% of all complaints filed with the EEOC are retaliation claims. Some employees report incidents of retaliation, but most are too frightened to do so. [Here] So how do we deal with this everyday injustice that is so pervasive and insidious?
Legal vs. Illegal Retaliation
As a practicing employment attorney, I hear first-hand about incidents of workplace retaliation so often they seem ubiquitous. Sometimes it seems as if there is an unspoken law requiring employers to seek harsh retribution for a host of common workplace behaviors and situations. When someone is reporting an incident of retaliation, the first thing I need to determine is whether the retaliation is legal or illegal. Yes, there is, in fact, a category of retaliatory conduct that is perfectly legal. It should not be legal in any situation in this writer’s opinion but the law as usual is several centuries behind the social relevance curve. Some retaliation, however, is clearly illegal now and therefore actionable.
Broadly, retaliation is defined as: “the action of harming someone because they have harmed oneself; revenge.” Thus, in the workplace, any harmful action taken against an employee because the employee committed an actual or perceived harm, is retaliation. For example, if an employee complains to his supervisor about sexual harassment by a co-worker and the employer responds by transferring the complaining employee to a shift which is less desirable and does not provide the same opportunities for overtime, that is retaliation. Likewise, if an employee complains about the supervisor’s tendency to talk too much about safety issues at staff meetings, and the supervisor overhears and punishes the complaining employee by making the same undesirable shift transfer, that also is retaliation.
In the examples above, however, only one of the two scenarios constitutes illegal retaliation, i.e., retaliation that is prohibited by law and thus legally actionable. The employee who was punished for reporting sexual harassment has a valid claim for retaliation while the employee who found safety training to be unbearably boring does not. Thus, retaliation is illegal in the workplace when an employer takes an adverse action against an employee for engaging in or exercising rights that are protected under the law. Since Title VII of the Civil Rights Act of 1964 and other laws protect an employee’s right to report sexual harassment, the adverse action is illegal in that case. Because there is no law that protects an employee’s right to complain about boring training classes, the second example is not illegal retaliation. Thus, the motivation for the retaliation is key. It is very important in assessing a retaliation complaint to understand what the action was that triggered the retaliation. It’s what happened before the retaliation that matters most.
While the reason or inciting action for the retaliation is important, it actually makes no difference whether the reason for the initial complaint by the employee was legitimate or not. In other words, if an employee is punished for reporting what she thinks is illegal race discrimination, the retaliation is illegal even if no actual illegal race discrimination was ever committed by the employer. Thus, if the employee reports a discriminatory incident and the employer disciplines or fires the employee in response, the employee nevertheless has a retaliation case. It does not matter that no discrimination occurred.
Where the law protects an employee’s right to complain, help others to complain, or to report some act of misconduct either within or outside of the organization, that action is regarded as “protected activity.” For example, the EEO laws prohibit punishing job applicants or employees for asserting their rights to be free from employment discrimination including harassment. It is therefore illegal retaliation to punish an employee for engaging in such protected activities. For example, it is unlawful to retaliate against applicants or employees for:
- Filing or being a witness in an EEO charge, complaint, investigation, or lawsuit;
- Reporting ethical violations;
- Communicating with a supervisor or manager about employment discrimination, including harassment;
- Answering questions during an employer investigation of alleged harassment;
- Refusing to follow orders that would result in discrimination;
- Refusing to commit illegal acts despite your employer’s direction or request to do so;
- Requesting or taking a leave of absence under the Family and Medical Leave Act (FMLA);
- “Whistleblowing” or officially reporting against your employer in an effort to stop illegal or unsafe practices;
- Filing for workers’ compensation benefits;
- Resisting sexual advances, or intervening to protect others from those advances;
- Requesting accommodation of a disability or for a religious practice; and
- Asking managers or co-workers about salary information to uncover potentially discriminatory wages.
It is important to understand that an employee does not have to formally object to the misconduct or discrimination to engage in valid protected activity. It can be enough to raise the issue of discrimination or harassment in any way that calls it to the employer’s attention. As long as the employer is on notice of the unlawful conduct, the reporting employee is protected from retaliation.
The Nature of the Problem
While the psychology of a retaliation scenario seems clear and simple, i.e., “You did something I didn’t like so I’m going to do something you don’t like…” the institutional dynamics involved are more complex. The aspect that makes retaliation illegal is not the revenge part at all. The law is not concerned with whether there was some act of vengeance. The laws against certain forms of workplace retaliation are intended to combat the aspect of fear created by the retaliatory action. The idea is if workers are too afraid to report misconduct the law in question cannot be enforced.
In a recent blog article, I addressed some sources of fear in the workplace. [HERE] Fear of retaliation by one’s employer was one of the primary sources of workplace fear. Fear is the real point of the retaliation, not revenge. Many employees refuse to protect their rights at work for fear of retaliation. This is really what the retaliatory employer wants. Retaliation is intended to create fears of getting fired, demoted to a lower paying position, or moved to an intolerable work environment. These and other fears typically underlie an employee’s reluctance to stand up for their rights. The truth is that where the rights you are asserting are protected by law, retaliation is illegal.
Retaliation is defined by many courts by its fear-causing tendencies. Any negative action taken by an employer which is severe enough that it might deter a reasonable employee from exercising their legal rights is likely to be sufficient to support a legal claim of retaliation. While a protected activity must precede the retaliatory act to make it legally actionable, the primary concern is whether the adverse action against the employee would tend to discourage others from making similar complaints. While the motive for the retaliatory act matters, it is not the subjective motive of the employer but the effect the retaliatory actions would have on a reasonable employee similarly situated to the complaining employee that matters most.
Forms of Retaliation
While most retaliation cases follow a familiar pattern, the forms that retaliation can take are legion. While some methods of retaliation like termination are obvious, many are more subtle and some are even difficult to classify as retaliation at all. Some common examples of workplace retaliation which I have had reported to me in my practice include:
- Demotion – Losing a position, title, status, job duties, or seniority privileges;
- Termination – Being separated involuntarily from the job;
- Abuse – Employer engages in verbal or physical abuse, or verbal insults;
- Increased Scrutiny – Unusual and unwarranted examination of the employee;
- Punitive Assignments–Being sent to perform undesirable tasks or assigning too much work for one employee;
- Changing Conditions – Moving the employee’s work-station or changing the employee’s schedule to create a hardship;
- Performance Targeting– Unwarranted performance criticism including unjustified Performance Improvement Plans not imposed on other non-complaining employees;
- Salary Reductions – Receiving a cut in pay or reducing the regularly scheduled hours;
- Exclusion – Intentionally left out of meetings, training sessions, or social activities;
- False Discipline – Being identified as committing misconduct or violating policies which are not enforced against others, suspensions without good reason;
- Threats – Threaten to make, or actually make reports to authorities (such as reporting employee to immigration agencies or police);
- Defamation– Publishing false negative information about the employee; and
- Third Party Acts– Take some action against friends or family members of the employee who may work at the company.
As you can see there are many ways that an employer can retaliate against an employee. Essentially, any employer action that has negative consequences for the employee can potentially be actionable retaliation. If the negative action is severe enough that it might deter a reasonable employee from exercising their legal rights, its probably illegal retaliation.
Proving Workplace Retaliation
While identifying a retaliatory scenario seems simple enough, proving a claim of illegal retaliation can be anything but. In almost every case, the retaliating employer will make some attempt to justify its actions by stating a legitimate non-retaliatory reason for the adverse action it took against the employee. Often the most challenging part of the case is proving that the actions taken by the employer were in fact illegitimate and based on retaliation.
To prove a case of illegal retaliation, four basic elements must generally be proven. First, the employee has to prove that they took part in a legally protected activity. As explained above, all retaliation is not illegal, only retaliation that follows a legally protected activity is illegal. An employee must demonstrate that they made internal (within the company or organization) and sometimes external (outside the company or organization) complaints in order to claim actionable retaliation. Next, the employee has to prove that the employer took adverse action against them. Here the employee must document or be able to prove that the employer did something to them to affect the terms and conditions of their work. Where termination is the retaliatory action, that proof is fairly easy to come by. However, when the employer retaliates in a more subtle way such as by berating or humiliating the employee in front of co-workers, the employee must document the incident and enlist the aid of witnesses to prove the retaliation.
Third, the employee must prove that the employer’s retaliation was in response to the protected activity. This element often involves proving that the employer’s proffered legitimate reason for the retaliatory action was in fact false or pretextual. This can be tricky where the employer has done a good job of documenting performance or disciplinary issues against the employee in the past. However, where the employer has weak documentation to support the legitimacy of its actions, a court can and often will infer that the actions were in fact retaliatory. Finally, the employee must show that they suffered some losses or damages as a result of the retaliation such as lost wages or benefits.
As with most workplace conflicts, the ability to make a credible claim often comes down to a battle of the documents. Documentation is the key to success in proving any misconduct at work, most especially workplace retaliation. The ability to prove that a retaliatory action took place often depends on the quality of the employee’s documentation as compared to the employer’s documentation. It is important to have documentation to show a link between the complaint (or other behavior that caused the retaliation), and the employer’s retaliatory actions. It is of course advisable to document the specifics of the retaliatory behavior. If the retaliation is a transfer to an undesirable shift, document all of the facts related to the transfer. Have others been transferred to the same shift in recent months? Who was transferred and was that also a punishment? Did the employer have to move someone out of that shift to make room for the reporting employee? Had that change been requested by the other worker? What is specifically undesirable about that shift?
It is also important to document certain past information. If the employer is claiming that poor performance is the reason for the adverse employment actions, a record of prior good performance such as emails or letters praising the employee’s work or positive performance evaluations and bonuses awarded provide excellent evidence to show that the alleged performance issue is simply a pretext for illegal retaliation. If a good performer suddenly becomes “poor” after a complaint of harassment, the evidence will often be fairly clear. The timing of the relevant events is a big factor. As in the example, if the retaliatory actions begin immediately after the employer learns of the protected activity, the link between the two will be evident.
Another set of facts that require careful documentation are the facts surrounding the employer’s explanation for the retaliatory acts. Ask probing questions about why the actions are being taken and document the employer’s answers carefully. Often the employer will give a weak or nonsensical reason when an action is truly retaliatory. If the employer tries to change the explanation for the retaliation later (perhaps after lawyers have become involved) that documentation of the weak reason they gave at first will be very important evidence of pretext. Try to get the reasons for any actions you suspect might be retaliatory in writing if only by email or memo. When the employer will not put things in writing take detailed notes, date them, and email them to yourself.
Be sure to document the basis for the initial complaint or report of protected activity. Even if there was no actual discrimination or misconduct, document the good faith basis for the complaint. Always record the names and contact information for any potential witnesses including co-workers, vendors, or customers where appropriate. Further, documentation for the actual complaint you made and the names of the persons to whom you complained will be important as well.
Finally, document the losses or damages you suffered as a result of the employer’s retaliatory conduct. Collecting pay stubs, income statements, and benefit documents will help prove the damages incurred from loss of wages or overtime as a result of the retaliation. Evidence of medical treatment for any conditions that may have been caused by the retaliation will also be important.
Context Matters Most
In the landmark harassment case Oncale v. Sundowner Offshore Services (1998), the United States Supreme Court pointed out that not every workplace problem is a matter of harassment or retaliation. Whether or not a workplace event is actionable depends upon the “constellation of surrounding circumstances, expectations and relationships.” In retaliation cases, our courts look at the context and the particular circumstances relevant to each situation to determine whether the allegedly retaliatory action had or was likely to have a chilling effect on employee reports of illegal conduct.
If you experience any of the negative employment actions described above, or if you have other reasons to suspect that you are being targeted with workplace retaliation, contact Carey & Associates, P.C. at firstname.lastname@example.org or call 475-323-6406 for a consultation. Remember: “An eye for an eye…”, leaves the whole world blind. Or at least, it leaves most of the world with only one eye. Don’t forget to donate to Mark’s ride to cure Multiple Sclerosis – #15000MILES4MS.
Listen to Podcast: The Law of Retaliation At Work: Blind Justice in the Workplace