Understanding Workplace Retaliation

Retaliation is an increasingly common legal claim.  In Fiscal Year 2008, the Equal Employment Opportunity Commission (EEOC) received 32,690 charges of retaliation.  Under both Washington and federal laws it is unlawful for an employer to retaliate against an employee who has engaged in protected activity.

The purpose of anti-retaliation statutes is to protect an employee’s employment so that employees do not feel intimidated as a result of filing charges or participating in an investigation of charges against an employer. To prove a claim of retaliation, an employee must establish that following:The employee engaged in protected activity.The employer knew the employee was engaged in protected activity.The employee suffered an adverse action.There is a causal link between the protected activity and the adverse action.

If an employee establishes these elements then the employer must show that there is a legitimate non-discriminatory reason for the action taken.  If the employer does this then in order for the employee to succeed, the employee must show that the employer’s reason is pre-textual and it was actually because of the protected activity.  The employee need not succeed on the underlying claim of discrimination or harassment to prevail on a claim of retaliation.

Examples of Protected Activity

Although not all-inclusive, the following list illustrates some examples of protected activities:Filing a charge of discrimination or harassment Cooperating with an internal investigation of alleged discriminatory practices Serving as a witness in an EEOC investigation or litigation.

Examples of Adverse Action

Below are some examples of adverse action: Termination Refusal to hire Denial of promotion Unjustified negative evaluations Changing work hours Diminishing an employee’s responsibilities A reduction in benefits Transferring to a less desirable location Unwarranted disciplinary action
If you are confronting retaliation claims in the workplace or fear that they are looming ahead, contact us to schedule a workplace assessment.

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