What Is Retaliation in the Workplace?

The workplace should be a place where you feel comfortable, secure, and able to do your best work. Unfortunately, workplace harassment is a reality at many companies, which can result in an unsafe work environment, decreased company morale, and poor performance at work. Even worse, employees who experience harassment and report this behavior may be retaliated against by supervisors or coworkers. Retaliation is one of the most frequently alleged causes of discrimination in the federal sector, according to the Equal Employment Opportunity Commission.

Experiencing workplace retaliation can also make employees more hesitant to speak up against future harassment for fear of the consequences of reporting inappropriate behavior. Because of this, failing to appropriately deal with retaliation can result in a hostile work environment where harassment and discrimination are allowed to occur. Workplace harassment and retaliation can be a serious problem that needs to be addressed head-on in order to ensure a safe, healthy, and productive workspace for all employees.

Definition of Workplace Retaliation

Workplace retaliation occurs after an employee has complained about harassment. This can include disciplining an employee, docking their pay, completing negative assessments of their work, or demoting them to a different position. 

In some cases, workplace retaliation can even result in a harassed employee being fired. Workplace retaliation is itself a form of harassment, and often builds on a pattern of previous harassment experienced by employees. While employees may face harassment for a variety of reasons, common reasons for harassment include interpersonal issues, caregiver status, unhealthy power dynamics between employees and employers, or discrimination on the basis of race, gender, or class, .

While workplace retaliation is a form of harassment, its definition is slightly narrower. In order for something to be defined as workplace retaliation, an employee must already have experienced harassment and have submitted a report or complaint detailing that harassment. When an employer or supervisor retaliates against an employee because of this complaint, whether to get revenge, make them uncomfortable, or to try to keep them from making future complaints, they are committing workplace retaliation.

Examples of Workplace Retaliation

Workplace retaliation can take a variety of forms. This retaliation can be overt — such as trying to get an employee who complains of harassment demoted or fired, but can also be more subtle and insidious, such as a continued campaign of ongoing harassment and mistreatment. In order to qualify as workplace retaliation, an action must have materially adverse consequences for an employee. This means that personal slights or petty exchanges don’t count as workplace retaliation, but anything that might deter an employee from engaging in a protected activity counts as retaliation. Examples of workplace retaliation include:

• Firing or attempting to fire an employee who complains of harassment (wrongful termination);
• Docking an employee’s pay as a result of a harassment complaint;
• Demoting an employee;
• Assigning an employee to another department;
• Conducting negative performance reviews or evaluations as the result of a harassment complaint;
• Refusing an employee certain perks and benefits that typically come with the job;
• Continuing an ongoing campaign of harassment and discrimination even after a harassment claim has been filed;
• Threatening or intimidating employees.

While not all examples of workplace retaliation are cut and dry, there are some factors that can significantly impact a claim. These include when:

• The retaliation occurred soon after an employee filed a complaint concerning harassment or discrimination;
• There is documented evidence, such as recorded phone calls or emails, that support the employee’s claims of workplace retaliation;
• The employer does not have an adequate reason for performing the retaliatory behavior.

How to Deal With Retaliation in the Workplace

If you think you might be a victim of workplace retaliation, there are a few steps you should take. The best course of action will depend on what type of harassment you’re facing, your individual employer, and your state of residence, among other factors. Depending on your specific situation, there may be different levels of necessary escalation. If you think you might be suffering from retaliation in the workplace, you should:

• Discuss the retaliation with your supervisor or a representative from human resources;
• Remain calm and collected even if employers or supervisors deny that retaliation has occurred;
• Review your employment agreement to see if any illegal behavior has occurred, and whether or not it includes an indemnification clause;
• Document any relevant evidence that shows you’re being retaliated against, such as emails, phone calls, or changes in policy;
• Gather any relevant historical evidence, such as records showing what your prior pay or privileges were before the retaliation;
• File a complaint with the Equal Opportunity Employment Commission or a fair employment agency associated with your state;
• If possible, consult with a lawyer about your situation in order to determine the best next steps for you in terms of employment law, which may include suing your employer or pursuing a further claim for compensatory damages.

Laws Regarding Employer Retaliation

Employees are protected from employer retaliation only under certain specific legal circumstances. An employee is protected if:

• They have filed a complaint or are a witness in an Equal Opportunity Employment investigation;
• They have complained of discrimination or harassment to an employer;
• They have refused to follow discriminatory orders or policies;
• They have refused inappropriate sexual advances or harassment;
• They have requested a reasonable accommodation, including for a disability or religious practice;
• They have asked for salary information concerning potentially discriminatory compensation practices.

Laws against retaliation apply to full time, part-time, temporary, and seasonal employees, as well as to applicants and former employees. Even if an employee only works a few hours a week or on a temporary basis, they’re still protected against retaliation. These laws also apply to former employees who no longer work at the company, as well as applicants who may or may not eventually be hired for the job. 

Employees are also protected against retaliation when they submit a complaint on another employee’s behalf, even if they themselves aren’t the subject of the initial discrimination or harassment. Employees can also file claims against their employers if they have experienced a work injury, construction injury, or other damages.

It’s important to note that even if an employee files an EEO complaint, they’re still responsible for the typical duties surrounding their job and must still abide by the rules of their workplace. While employers can’t retaliate against an employee because of their EEO complaint, they can still punish or fire an employee for neglecting their duties or otherwise behaving inappropriately in the workplace. Employees also operate under a certain assumption of risk, and can’t submit a complaint against an employer for a risk they willingly undertook — especially if they signed a release of liability or liability waiver.

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