Can my boss retaliate against me?
Most people in the workforce understand that there are laws to protect them as employees, especially from certain kinds of discrimination and harassment. But there are some who don't realize there are laws that also protect them from retaliation by their employers if they speak out against discrimination or harassment. This means, essentially, that your employer cannot punish you for complaining about discrimination or harassment. This includes participating in an investigation into such complaints as well.
What does the law consider unlawful retaliation?
Under the law, retaliation means taking an "adverse employment action" against an employee for "engaging in legally protected activity." What do those terms mean? The law is constantly changing when it comes to determining what actions fit within the court's definitions. However, there are certain understood agreed upon examples.
Generally speaking, "adverse employment action" means an adverse or negative job action. This includes demotion, discipline, termination, reduction in salary, or changes in job assignments or shift schedules. Sometimes, retaliation can be more indirect, such as sudden unjustified negative performance evaluations, being blamed for co-workers poor performance, being excluded from relevant training opportunities. Courts require that these more subtle actions serve to "deter a reasonable person in the situation from making a complaint." The term "reasonable" is always open to interpretation. So it is important to discuss your situation with an experienced employment law attorney to determine whether you have a claim.
"Legally protected activity" is a more clear term. Under federal law, protected activity generally falls into one of two categories: participation or opposition. In other words, you either oppose a practice believed to be unlawful discrimination or you participate in some type of employment discrimination proceeding. It is important to note that, even if you oppose some aspect of your employer's conduct that ultimately turns out to be lawful, if you were reasonable in believing the conduct was discriminatory and made the complaint in good faith, you are still protected.
There are also various types of participation that are protected. For example,
- Filing a charge of employment discrimination (or EEOC charge)
- Cooperating with an internal investigation or participating as a witness in an EEO investigation or lawsuit (yours or someone else's) are all protected.
- Again, even if it is later determined that the claim was invalid, your participation is still protected.
How do you know if you have been retaliated against?
It can be difficult to tell if you are a victim of retaliation. Many employees see subtle changes in a supervisor's demeanor, such as not being as friendly, and feel that is a sign of retaliation. Although it may be a direct result of your protected conduct, it isn't retaliation by itself. Only conduct or changes in conduct that have an adverse effect on your employment are considered retaliatory.
If you are suspicious that your employer's actions are retaliatory, document that behavior. 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 also help your attorney in analyzing your case if it comes to that. 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.