Retaliation: Is Your Employer a Bully?
What is workplace retaliation?
Unlawful workplace retaliation occurs when an employer takes an adverse action against an employee after an employee has engaged in a protected activity. It is a hapless situation when an employee is punished for doing the right thing.
In Texas, to be protected from retaliation, you must be engaged in a protected activity; in other words, there must be a law that says you are protected from being retaliated against for engaging in certain conduct. These anti-retaliation laws are designed to encourage employees to come forward and report an employer’s illegal conduct.
What is a protected activity?
An employer is prohibited from retaliating against an employee for filing a lawsuit or complaint of discrimination, reporting discrimination, assisting another employee in filing a discrimination complaint, or agreeing to be a witness in a discrimination complaint. In Texas, discrimination may be based on:
- National Origin
- Pregnancy Discrimination
- Sexual Harassment
- Violation of federal or state laws
In addition to claims for discrimination, an employee is also protected from retaliation for reporting or assisting another in a claim for unpaid overtime or an illegal tip pool. Further, there at least a dozen other anti-retaliation laws that may protect an employee from retaliation. You should contact an employment lawyer to see if you are protected from retaliation by your employer.
In addition to the protected activities, the EEOC has expanded their definition of protected activities to include opposition activity, meaning an employer cannot retaliate against an individual for “opposing” an unlawful practice. Based upon the EEOC’s guidance, an employer is prohibited from punishing an employee for communicating opposition to a perceived equal employment opportunity violation – even if the allegation does not turn out to be true. The EEOC has provided the following examples:
- Threatening to complain or complaining about alleged discrimination against oneself or others;
- Providing information in an employer’s internal investigation of an equal employment opportunity matter;
- Refusing to obey an order reasonably believed to be discriminatory;
- Advising an employer on equal employment opportunity 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 equal employment opportunity related compensation disparities; or
- Talking to coworkers to gather information or evidence in support of a potential equal employment opportunity claim.
However, the protection is limited to individuals who act with reasonable good faith belief that the conduct opposed is unlawful or could become unlawful if repeated. In other words, the employee must believe in good faith that the conduct was discriminatory and must have a basis for that belief.
What qualifies as an adverse action?
Again, if an employee engages in a protected activity, the result is the employee is protected from an employer retaliating by taking an adverse action. An adverse employment action is something that is deemed materially adverse. The adverse employment action must be something that a reasonable employee would view as adverse and would prohibit him or her from engaging in the activity in the future.
Some examples of adverse or illegal retaliatory actions include:
- Refusal to hire
- Failure to Promote
- Placement on Administrative Leave
- Loss of Pay
- Increased surveillance of employment
In a retaliation case, legal proof of retaliation requires that:
- An individual engaged in a prior protected activity;
- The employer took an adverse action because of the employee’s engagement in the protected activity; and
- Retaliation motivated the employer’s action.
Proving workplace retaliation is not an easy task, but do not let your employer punish you for exercising your rights. If you believe you’ve been victim to workplace retaliation please call the employment lawyers at Herrmann Law, PLLC 817-479-9229 to speak to an experienced employment attorney.