What should you do if you think your employer is retaliating against you
In the employment law context, retaliation is generally defined unfair treatment because you participated in an activity protected under the law. This means that you may have “opposed” an unlawful practice by telling your employer that you thought you were being treated unfairly at work because of your race, gender, age, or national origin, among other reasons (or complained, or otherwise assisted with issues such as these that other employees were facing). When you voice such a claim, it must be based on a true and honest belief which, after you express your belief of discrimination, your employer subjects you to a negative employment action. Note – you can be wrong, so long as you act out of a true and honest belief (in other words, there does not have to be actual discrimination, you just have to believe that there is).
“If you make a good faith, honest complaint about discrimination at the workplace, you are protected – even if you are wrong.
— ALEX GRANOVSKY
Another basis for retaliation is that you “participated” in a legal proceeding in which another employee was enforcing his or her rights. For example, maybe you testified or submitted a document (often called an affidavit) in which you made statements helping a co-worker’s discrimination claim against the employer.
By contrast, if you told your employer you don’t like the employer’s management style, and he or she fires you in response, this is not a protected basis for bringing a retaliation claim under applicable law.
How Do I Know If My Employer Is Retaliating Against Me?
In addition to the “protected” activity mentioned above, your employer needs to know that you participated in the protected activity. This means that if you think your employer overheard you saying something, for example, about how women at the company can never get ahead, but no one other than a co-worker actually heard you say that, this does not rise to knowledge. Or, an e-mail you sent expressing this same idea was sent, but it was never actually delivered or opened, your employer would not know about your protected activity, so any treatment you perceive as unfair may not be due to retaliation.
You Need to Have Something Negative Happen to You At Work
If you made the comments referenced above, your employer would need to actually take adverse action against you. The clearest examples are termination and failure to receive bonuses, raises, or promotions. Failure to get a birthday cake might not rise to an adverse action, but excluding you from a company retreat at which company decisionmakers are present or purposefully changing your work shift to a less desirable one, could, depending on the circumstances, be deemed retaliatory.
There Must Be A Connection Between Your Protected Activity and Negative Treatment
Let’s say your employer knows you submitted a statement supporting a co-worker’s lawsuit against the company for employment discrimination and you have suffered no ill treatment until three years later your employer fires you for no apparent reason. If that much time has passed, it may be hard to claim your termination was because of your support of your co-worker three years prior. If, instead, after many years of getting positive reviews, with no warning, you receive a bad review three months later, this could suggest a basis for retaliation.
There are many variations on the scenarios described above. If you would like to discuss your situation with us, please feel free to call or e-mail us at any time. You will be on the phone with an attorney within 24 hours.