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Basics of Workplace Retaliation

When Does an Employer Action Become an Illegal Retaliation?

A retaliation case occurs when an employer takes a materially
adverse action against a worker.

 

A materially adverse action means any action that might dissuade a reasonable worker from making or supporting a charge of discrimination. 

Materially adverse actions can come in the form of a wrongful termination, demotion, cut in pay, undesirable transfer, or other actions that can be challenged directly as employment discrimination.

Workplace Retaliation: What Are Your Rights?

Under California employment law, a company can not retaliate against any worker for making or participating in a charge of discrimination. 
 

An employee can legally and ethically make or participate in a charge of discrimination through any of the following protected activities listed below:
 

  • Filing or being a witness in a discrimination charge, complaint, investigation, or lawsuit.
     

  • Communicating with a supervisor or manager about employment discrimination or harassment.
     

  • Answering questions during an employer investigation of alleged harassment.
     

  • Refusing to follow orders that would result in discrimination.
     

  • Resisting sexual advances, or intervening to protect others
     

  • Requesting accommodation of a disability or for a religious practice.
     

  • Asking managers or co-workers about salary information to uncover potentially discriminatory wages.

Other Examples of Materially Adverse Actions

Whether an action is materially adverse depends on the facts and circumstances of the particular case.For this reason, the same action may be retaliatory in one case but not in another.

Depending on the facts, examples of materially adverse actions may include:
 

  • Negative or lowered evaluations.
     

  • Transfers to less prestigious or desirable work or work locations.
     

  • Making false reports to government authorities or in the media.
     

  • Filing a civil action.
     

  • Threatening reassignment; scrutinizing work or attendance more closely than that of other employees, without justification.
     

  • Removing supervisory responsibilities.
     

  • Engaging in abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not yet "severe or pervasive" as required for a hostile work environment.
     

  • Requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity.
     

  • Terminating a union grievance process or other action to block access to otherwise available remedial mechanisms.
     

  • Taking (or threatening to take) a materially adverse action against a close family member (who would then also have a retaliation claim, even if not an employee).

What Does It Mean To "Participate In A Charge of Discrimination"?

An employer can not retaliate against an individual for "participating" in a complaint process.

This means an employer cannot punish an employee for filing a complaint, serving as a witness, or participating in any other way in a complaint matter, even if the underlying discrimination allegation is unsuccessful or untimely.

Should I Consult a Retaliation Attorney?

If you feel you have been the victim of workplace retaliation, contact Reyes & Associates to see how we can assist you.

While you are not required to consult with a retaliation lawyer to initiate a formal complaint, lawsuits are complicated and require a skillful attorney to maximize the value of your case.

You also only have a certain amount of time to file a lawsuit, memories fade and witnesses lose contact. So it's critical to contact a well-trained lawyer immediately after the retaliation occurs.

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