Retaliation

What Is Retaliation?

Retaliation occurs when an employer punishes an employee for exercising their rights or reporting harmful or illegal practices in their organization.

What Are Examples of Retaliation?

Retaliation includes but is not limited to:

• Increased scrutiny
• Reprimands or unwarranted poor performance reviews
• Attacks on the employee’s reputation
• Verbal or physical abuse
• Threats directed at the employee’s family members
• Reporting (or threatening to report) an employee’s immigration status to authorities
• Demotion
• Termination

What Is the Difference between Retribution and Retaliation?

Both retaliation and retribution involve punishing someone in response to their prior “wrongdoing,” but the intentions behind the punishment differ. While retaliation is motivated by personal reasons, including revenge, retribution stems from a desire to achieve justice.

For example, a manager firing an employee for reporting sexual harassment to protect their reputation is retaliation.

However, the executive team’s decision to terminate the manager for sexually harassing the employee would be retribution.

Is Retaliation Always Illegal?

In short, no. Consequences may occur for other reasons, and an employee falsely claiming retaliation is not immune to lawful dismissal. Retaliation is only illegal when employers punish employees for actions that are protected by Equal Employment Opportunity Commission (EEOC) laws such as:

• Title VII of the Civil Rights Act of 1964
• Equal Pay Act of 1963 (EPA)
• Age Discrimination in Employment Act of 1967 (ADEA)
• Titles I and V of the Americans with Disabilities Act of 1990 (ADA)
• Civil Rights Act of 1991
• Sections 501 and 505 of the Rehabilitation Act of 1973
• Genetic Information Nondiscrimination Act of 2008 (GINA)

Here are some examples of when employers cannot discipline employees, as these are legally protected actions:

• Refusing to follow orders that would result in discrimination
• Communicating with management about employment discrimination, including harassment
• Resisting sexual advances or intervening to protect others
• Answering questions during an employer investigation of alleged harassment
• Requesting accommodation for a disability or religious practice
• Asking managers or colleagues about salary information to uncover potentially discriminatory wages

Illegal Retaliation Example

Let’s say Mary complains about a pay disparity between herself and her male colleague for the same role. As a result, her manager demotes her.

Her employer’s retaliation was unlawful because Mary had reason to believe she was being discriminated against. Moreover, Mary’s claim is protected under the EEOC, specifically, the Equal Pay Act of 1963.

Legal Retaliation Example

Imagine an employee, Judy, filed a false sexual harassment complaint to obtain her colleague’s (the alleged perpetrator) position. In this case, the employer has the right to take action and lawfully terminate Judy.

Can an Employer Fire an Employee as Retaliation?

Yes, an employer can fire an employee as retaliation. But whether that termination is legal or illegal must be evaluated.

As illustrated above, it would only be wrongful termination if the employee’s complaint was protected by EEOC laws.

Can an Employer Fire a Witness for Retaliation?

According to the EEOC, employers cannot punish an employee for serving as a witness in an EEOC complaint.

What Is the Penalty for Retaliation?

If an employer is found guilty of retaliation, they must provide restitution to the employee which may include:

• Back pay for the compensation the defendant missed as a result of the retaliation such as lost wages, lost fringe benefits, and retirement contributions
• Front pay for future lost earnings such as promotions and other career damage
• Compensatory damages the retaliation caused such as pain and suffering, job search costs, and harm to reputation