Retaliation: Negative actions resulting from protected activity

Under Equal Employment Opportunity statutes, employees are permitted to engage in various “protected activities’ during their employment. Employers are legally prohibited from retaliating against employees who engage in a protected activity.

What is a protected activity?

Generally, the EEOC protects employees by giving them the right to complain of any illegal activity that occurs in the workplace. Some of these protected activities may include:

  • Filing complaints, serving as a witness, or otherwise participating in certain investigations or proceedings (e.g. EEO proceedings, OSHA investigation of workplace safety violations)
  • Opposing unlawful discrimination or harassment in the workplace (e.g. filing an EEO complaint, filing a complaint with management, refusing to terminate an employee for discriminatory reasons)
  • Opposing violations of wage and hour laws (e.g. unpaid overtime, wage theft)
  • Exercising your right to take FMLA leave

What is retaliation?

Employer retaliation occurs when an employer takes negative action against an employee for engaging in an EEO protected activity. Some of these negative actions may include:

  • Termination of employment
  • Reduction of pay or salary
  • Reduction of work hours
  • Demotion
  • Job or shift reassignment
  • Denying time-off requests
  • Unwarranted negative performance reviews or disciplinary action against you

Filing a claim for retaliation

If your retaliation claim stems from your complaints of discrimination or harassment, you must file a complaint with the EEOC. The EEOC will then process your claim, contact your employer, and attempt to settle the matter. If that is not possible, the agency may issue you a ‘Notice of Right to Sue,’ which will allow you to file a lawsuit against your employer. You will then have 90 days to file a lawsuit in court.

If your retaliation claim stems from other complaints (e.g. overtime violations), a ‘Right to Sue’ letter from the EEOC is not required to file a lawsuit against your employer.

It can be difficult to know how to proceed with your retaliation claim against your employer. An employment law attorney can guide you through the process and help you recover lost pay and benefits and other damages.

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