The Legal Meaning of Retaliation
Retaliation most commonly occurs when an employee reports that she or he believes that discrimination is occurring. The employee has a right to be free of discrimination. The employee has a right to speak up if she or he has a “good faith belief” that discrimination is happening. The employer should investigate the report. If discrimination is discovered, the employer should put an end to the discriminatory behavior.
Not all employers do what they should. Sometimes management responds to a report of discrimination with a “material adverse employment action.” That is a fancy legal term meaning – the employer does something bad that causes the employee damage or loss.
The basic elements of legal retaliation are (1) the employee engages in a protected activity, i.e., asserts a legal right; (2) the employer invokes a material adverse employment action, does something that causes the employee harm; and (3) the adverse action was because the employee asserted a legal right.
Opposing Unlawful Actions
Employees have the right to oppose what they perceive to be discrimination, either to themselves or to others at work. The employer cannot punish an employee for communicating their opposition.
For example, it is unlawful to retaliate against an employee for:
- complaining about alleged discrimination against oneself or others;
- providing information in an employer’s internal investigation of an EEO matter;
- refusing to obey an order reasonably believed to be discriminatory;
- advising an employer on EEO compliance;
- resisting sexual advances or intervening to protect others;
- passive resistance (allowing others to express opposition);
- requesting reasonable accommodation for disability or religion;
- complaining to management about EEO-related compensation disparities; or
- talking to coworkers to gather information or evidence in support of a potential EEO claim.
Other Laws Protecting Employees
There are other forms of protected activity, such as serving on a jury, joining a union, reporting unsafe working conditions, taking a leave of absence under the Family Medical Leave Act, requesting an accommodation for a disability, discussing better working conditions or better wages with a coworker, filing a claim for workers compensation, and reporting perceived violations to federal or state agencies.
Any time an employee asserts a right that is granted under a federal or state law, that is a protected activity. If an employer treats the employee adversely in a material or significant manner because the employee asserted his or her right, that is retaliation under the law.