Retaliation in the Workplace – is it Against the Law?

Retaliation in the Workplace – is it Against the Law?

It is estimated that you will spend nearly one third of your adult life at work. Because workplace success often requires you to navigate through a wide range of personalities and social situations, it is almost inevitable that at some point conflict will arise.  When it does, employees often consider reporting the situation to their manager or to their company’s Human Resources Department in the hope that the problem will be solved.  In making such a report, many employees assume that they will be protected from retaliation – after all, they did the right thing and reported a problem.  Many companies encourage this belief by advertising “open-door” policies and employee ethics hotlines.

In fact, some complaints are protected and some complaints are not.  Reality is that many employers do not respond well to complaints, especially if you are viewed as going over your manager’s head.  Human Resources Departments are not necessarily your friend – they are frequently more interested in protecting their company from legal exposure than in resolving conflict in the workplace.  In many cases, employees have little or no legal protection from retaliation for internal complaints, even if your company encourages reporting.

To be clear – only some complaints are protected by anti-retaliation laws.  If your complaint is not protected conduct, your employer may be able to take action against you for making it.  For example, you might complain that your boss is an abusive jerk who belittles you, spews profanity, and makes your workplace a living nightmare.  As obnoxious as this conduct is, depending on the circumstances it may not be illegal.  As horrible as it sounds, your employer might be within their rights to terminate you for complaining about the jerk.

Therefore, before you risk your career by making a complaint to your manager or human resources, you should have a firm understanding of whether the law protects you from retaliation or whether it does not.  Below, we explore a few types of retaliation that are absolutely illegal.  Understand, however, that retaliation law is very complex, and the only way to be certain that you are legally protected is to speak to an attorney before you complain.  An attorney can tell you whether your complaint is protected, and how you should go about making the complaint.

Most (but not all) of the time, retaliation is illegal because a specific law forbids it.  For example, Title VII of the Civil Rights Act, the Ohio Laws Against Discrimination, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Fair Labor Standards Act, and other employment law statutes prohibit employers for retaliating against employees who engage in certain types of protected activity.[1]

Protected activity can mean all kinds of things, and varies from law to law.  For example, it could consist of the filing of a discrimination charge with the Equal Employment Opportunity Commission or the Ohio Civil Rights Commission, complaining about theft of Federal Money, or making a complaint about workplace safety to OSHA.  It can even matter how you make the complaint (oral or in writing) and the specific person you make the complaint to.

In general, most protected complaints require that an employee reasonably believe that there has been a violation of a particular law.  For example, Title VII of the Civil Rights Act forbids discrimination on basis the race, gender, religion, or national origin.  Due to this, if an employee makes a good faith complaint to management about racial discrimination in the workplace this may well be protected activity.  Likewise, if an employee makes a good faith complaint about themselves or others being subjected to sexual harassment (a type of gender discrimination), this may be protected activity as well.

Even if you are confident that your complaint will constitute protected activity, you must ensure that it is specific and gives details. For example, a complaint to HR that someone is harassing you might be found too general and non-specific to be considered protected activity.  A better complaint would be that “person A is harassing me because of my religion,” with a few examples thrown in. A good complaint should make your employer aware that laws may have been violated.

Although it is not always necessary for you to be protected, if your company provides a specific method to report harassment or discriminatory behaviors, such as a hotline or other procedure you should follow their procedure.  Usually, when an employer provides a procedure to report harassment, the reports are documented, but you should confirm your complaint in writing following any oral conversation.  If your employer does not provide specific guidelines on how to report harassment, you should make a written report or an oral report subsequently memorialized in writing to your immediate supervisor or HR.  Make sure you retain copies of all written communication for your records.

If an employee’s complaint constituted protected activity, an employer typically may not legally terminate, demote, suspend or failure to promote an employee because they made the complaint. If an employee is retaliated against because they engaged in protected activity, they may have substantial claims that they can bring against their employer for damages.

As you can see, what constitutes illegal retaliation is very complex.  If you believe that you are a victim of retaliation you should contact an employment attorney to assess whether what happened to you is illegal and find out what remedies you may have.  You should do as quickly as possible, as some retaliation laws require action in as few as thirty days after your employer takes action against you.

Sam Schlein is an associate with the law firm Marshall and Forman LLC. He represents individuals in a wide range of employment issues. 

[1] For more information about retaliation you can also visit http://www.workplacefairness.org/general-whistleblowing  https://www.eeoc.gov/laws/types/facts-retal.cfm