Retaliation

Federal, state and local anti-discrimination laws prohibit an employer from retaliating against an employee because that employee opposed conduct he or she reasonably believed constituted unlawful discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.

Retaliation occurs when an employer takes an “adverse action” against an employee because he or she engaged in a “protected activity.” Protected activity can take the form of: complaining to one’s supervisor or to a Human Resources representative, filing a charge or complaint of discrimination, participating in an EEO investigation, providing information in response to an employer’s internal investigation into a coworker’s misconduct, sitting for a deposition in a discrimination case, or otherwise opposing discrimination or participating in the discrimination complaint and investigation process. Adverse action by an employer may take the form of termination, demotion, denial of a promotion, refusal to hire, transfer, assignment to undesirable job duties, or other unjustified retaliatory conduct. Indeed, the Supreme Court issued a landmark decision in June of 2006, called Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006), which expanded the rights of workers to be free from retaliatory action, including non-employment related actions, provided that such actions would discourage a reasonable employee from making a charge of discrimination or participating in the complaint and investigation process.

There are also more specific anti-retaliation statutes. For example, a federal government employee has protections under the Whistleblower Protection Act. Employees complaining of financial or accounting fraud or improprieties may be covered by the Sarbanes-Oxley Act and similar state laws. There also protections for employees in the public transportation industry and those complaining of illegal or improper environmental practices by their employers.

Katz, Marshall & Banks attorneys are national recognized for their expertise in handling retaliation claims, and we regularly teach, provide commentary, and write about these issues.

If you have concerns about retaliation for engaging in protected activity, or if you have already faced workplace retaliation, contact the experienced lawyers at Katz, Marshall & Banks, LLP for an evaluation of your case with no further obligation.