Sometimes employees believe their boss is punishing them unfairly for an action in the workplace. If true, this punishment could be considered retaliation, which is prohibited in the workplace. Retaliation is described as occurring when an employer punishes an employee for engaging in a legally protected activity. The punishment might come in the form of any negative job action such as demotion, discipline, firing, salary reduction, or job/shift reassignment, but also occurs in more subtle forms.

Under federal law, employees are protected from retaliation when employees complain about workplace discrimination or harassment. The law also protects employees who cooperate in an EEOC investigation or serve as witnesses in investigations and litigation. There are also some individual state laws against retaliation.

To be considered retaliation, the event has to impose an adverse effect on the employee’s job. It can range from their job being threatened to micromanagement or an unfair performance review. Retaliation claims have become more frequent in recent years due to legislation broadening the scope of people protected against retaliation, lowering the burden for establishing unlawful retaliation, and expanding the damages awarded. Due to the frequency of these claims and the success rate for the claimants, employers should be aware of how to protect themselves against these claims.

An employee must show the following in order to establish a claim for unlawful retaliation:

1. He/she engaged in a protected activity
2. The employer took some adverse action against the employee
3. A causal connection existed between the protected activity and the adverse action

To establish protected activity, the employee must show:

• Participation in an activity protected by the employment statute, such as filing a claim, testifying, or assisting in an investigation.

Or

• Opposition to an unlawful employment practice protected by the statute. Protected opposition may include making complaints to management, protesting against discrimination, expressing support of co-workers who have filed charges of discrimination, etc.

To reduce exposure to retaliation claims, employers should:

1. Implement a policy prohibiting unlawful retaliation
2. Provide training
3. Not ignore or isolate claimants
4. Consider additional protective measures
5. Closely review subsequent employment actions

When an employer is first notified about a retaliation claim, the employer should contact their in-house attorney. Involving the in-house attorney from the beginning will allow them to see the entire picture, and advise the employer of what to do to reduce the likelihood of litigation.