Like “discrimination,” “wrongful termination,” and “harassment,” the term “retaliation” also has specific legal meaning in the employment context. And just like these other legal terms of art, not all retaliation is unlawful. It is unlawful for an employer to retaliate against an employee for engaging in “protected activity,” of which there are several types.
Unlawful retaliation usually refers to a negative employment action, like a termination or demotion, which an employer takes in response to a complaint about, or opposition to, unlawful workplace discrimination. This means unlawful retaliation has to be related to openly opposing, reporting, or participating in an investigation about unlawful discrimination (discrimination because of race, color, sex, pregnancy, religion, national origin, age, disability, military status, or for taking protected medical leave).
For example, if an employee is fired for reporting someone was sexually harassing them, that may constitute unlawful retaliation. If an employee is demoted after reporting that someone else was being discriminated against, that also may constitute unlawful retaliation. Or, if any employee’s pay is cut after providing information during a discrimination or harassment investigation, that may constitute unlawful retaliation.
Another common type of unlawful retaliation is retaliation for an employee filing a claim for workers’ compensation benefits for a workplace injury. It is unlawful for an employer who carries worker’s compensation insurance to retaliate against an employee for filing a claim for worker’s compensation benefits for a workplace injury. For example, an employee who is injured on the job who notifies the employer of the injury, or who makes a claim for worker’s compensation benefits to treat the injury, cannot be retaliated against for doing so. Sometimes employers will try to discourage employees from seeking treatment for their injuries because it costs them money – if they subscribe to worker’s compensation, this may be unlawful.
So while not all retaliation is unlawful, it is unlawful for an employer to retaliate against you for complaining about or opposing what you reasonably believe is unlawful discrimination or harassment, or for seeking worker’s compensation benefits for a workplace injury. If you think you have experienced unlawful retaliation, contact us, we can help.