When is an Email Really an Expression of Workplace Retaliation?

Defining what constitutes retaliation in the workplace is a challenging task, and actually recognizing it when it occurs can be even more daunting. In many cases, what may "feel like" retaliation to an employee may not be sufficient to satisfy the legal standard required to bring a retaliation claim in court. With social media becoming so commonplace, even in the workplace, interpreting an email to determine whether retaliation is at work, can be tricky.

Disclosure of discrimination claims by email

In an old case involving Belmont Abbey College in 2007, a school-wide email became the subject of a possible retaliation claim. In that case, several faculty members complained to the EEOC about potential religious and gender discrimination. The President of the school responded by sending out a mass email regarding the claim to everyone associated with the school, including faculty, staff, and students. The email detailed the EEOC complaint and the faculty members who made it. The court held that the President's email had a "chilling effect" on other faculty and staff who would not be hesitant to make a complaint of discrimination.

Issues an employer should consider before sending such an email

Whether or not a general email disclosing the nature of a discrimination complaint is a form of retaliation can be tricky. However, there are several issues that an employer should consider before putting that type of information out there for every else. A communication that identifies a whistle-blower should be reconsidered with these factors in mind:

  • the whistle-blower's privacy.
  • the severity of possible reprisal.
  • the likelihood of reprisal.
  • the vulnerability of the employee to retaliation
  • the form and tone of the statement
  • the totality of the circumstances

Essentially, even if the email isn't meant to be a form of retaliation, it could easily open up an employee to retaliation. In many cases, though, the purpose of the email is to shame and ostracize the complainants, which will ultimately cause a chilling effect.

What to do if you suspect retaliation

If you are concerned that your employer's actions are retaliatory, the first thing to do is document that conduct. The more evidence you have to support your claim, the better off you will be if you decide to take legal action. Taking notes or keeping a journal will be helpful for your attorney in analyzing your case. If you believe you may be the victim of workplace retaliation, you should speak to experienced employment law attorneys as soon as possible, as there are very specific time limits within which you can bring a claim.

If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Wrady & Michel, LLC, either online or by calling us at (205) 265-1880.

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