What Is “Retaliation” at Work?

The term “retaliation” has a limited definition in employment law.  To have a claim for retaliation, an employee must (1) make a report of discrimination to the company, (2) suffer an “material adverse action” by the employer, such as termination, and (3) prove that but for the report of discrimination, the employee would not have been terminated.

Employees have the right to be free from discrimination and free from retaliation for reporting discrimination.  If an employee has a good faith belief that discrimination or harassment is occurring, the employee should make a report of the discrimination/harassment in writing to Human Resources or to management.  The company’s handbook usually will state the name of the person to whom a report should be addressed.  If the company terminates the employee or takes other material adverse action against the employee reasonably soon after the report and gives a pretextual reason for the adverse action, a reason that is not credible, then the employee may have a claim of retaliation.  As with all cases, each claim is based on the specific facts of what happened.  You should contact an attorney who knows employment law to determine whether you have a valid claim.

Employers should take reports of discrimination seriously.  Obviously, discrimination is illegal. The preferred practice is to first talk with the employee about the problem and then investigate the facts.  If the matter involves harassment based on a protected class, the employer must take “prompt remedial measures” to end the harassment.  If other illegal actions are occurring, such as discrimination, the employer must put a stop to those actions as well.  Employees have a right to make reports based on their good faith belief that harassment or discrimination is occurring, even if no harassment or discrimination is discovered after investigation.  In fact, taking an adverse action against an employee who makes a report of harassment or discrimination can be illegal by itself.


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