Unlawful retaliation in the workplace, whether under Title VII of the Civil Rights Act, or under state civil rights or whistleblower protections, is a pivotal situation – the EEOC received more than 28,000 retaliation complaints in 2022 – and involves complex areas of employment law, requiring a nuanced understanding for employers to effectively navigate the potential risks. Simply put, workplace retaliation denotes the unjust punitive measures taken by an employer against an employee who has engaged in legally “protected activities,” which can include whistleblowing or lodging complaints about workplace discrimination or harassment. Employer retaliatory behavior, however, can wear many masks, encompassing overtly adverse acts, such as termination or demotion, to more subtle, yet equally detrimental strategies, such as creating a hostile work environment through multiple small slights, or “death by a thousand paper cuts,” as it has been described.
Employees have the burden of proving unlawful retaliation, which is comprised of three distinct elements: (1) the employee’s engagement in a protected activity, (2) the employer’s adverse action against the employee, and (3) a causal connection between the two. Each of these components presents its unique complexities, intricacies, and subtleties, demanding a skilled hand to steer through the legal process.
The term “protected activities” is a multifaceted concept. It includes whistleblowing or filing complaints about workplace discrimination or harassment but also encompasses many other activities where the employee exercises their legal rights. These activities, whether they are raised within the employer’s complaint policies and procedures or are filed with external entities, such as administrative agencies or law enforcement, are shielded by the law, on the theory that employees should be able to voice their concerns without the fear of employer retribution.
“Adverse actions” in the context of employment retaliation are not limited to easily identifiable punitive measures such as employee termination or demotion. Adverse actions can also manifest themselves in less discernible forms like the alteration of job responsibilities, marginalization of an employee, fostering a toxic, hostile work environment, or any action that “might dissuade a reasonable worker from making a charge of discrimination.” Adverse actions can even extend to retaliatory acts by an employer causing harm to the employee outside the workplace. It’s vital to understand that any negative alteration in employment conditions that is directly triggered by the employee’s engagement in a protected activity can be classified as an adverse action.
Finally, unlawful retaliation requires a “causal connection,” which is the linchpin linking the employee’s protected activity to the employer’s adverse action. A close-in-time connection between the employee’s protected activity and the employer’s adverse action is often enough initially to create a rebuttable presumption of unlawful retaliation by the employer. However, it remains the employee’s burden in the end to show that his or her employer took the adverse action because of the protected activity, i.e., “but for” the employee’s protected activity, the retaliation would not have occurred. Establishing this link usually hinges on circumstantial evidence, and thus requires a meticulous and methodical approach.
The legal nuances of retaliation claims can seem daunting. Employment attorneys are well-versed in both the direct and circumstantial forms of workplace retaliation, including recognition of patterns and behaviors that employers may otherwise overlook or misinterpret in the absence of specialized knowledge, which is often the key to a successful defense or avoidance of a retaliation claim.
If you have questions or need any assistance concerning guidance around workplace retaliation claims, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com.
This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.