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Retaliation in the Workplace

The Age Discrimination in Employment Act, the Americans with Disabilities Act, the Equal Pay Act and Title VII of the Civil Rights Act of 1964, all contain provisions prohibiting an employer from retaliating against an employee who engages in “protected activity”. Protected activity is where an employee has tried to exercise his or her rights under an employment statute. An employer cannot retaliate against an employee who files a charge of discrimination. This protection goes farther than simply completing an EEOC charge of discrimination or making other objections to discriminatory conduct. Opposition to discriminatory conduct is very liberally construed. For example, if an employee complains to another worker about harassment by a foreman or supervisor, that complaint would constitute opposition to discriminatory conduct and would be considered a “protected activity”.

An employee is protected from retaliation if he or she participates in an investigation or hearing under Title VII including testifying or assisting in an investigation. In order for an employee to prevail on a retaliation claim, the employee must prove that he or she was engaged a protected activity or was opposed to discriminatory actions.

The classic types of retaliation are demotion, discharge, harassment, negative evaluations, reprimands and like actions. The employee has to establish a connection between the protected activity and the adverse employment action. Quite often circumstantial evidence is relevant to the evaluation. Typically, where an employee can establish that the employer retaliated and where the employer has taken an adverse action against the employee the inference is against the employer. An employee who has been the victim of retaliation can recover both compensatory (actual damages) and punitive damages. An employee’s recovery is different depending on what act or statute the employee pursues his or her retaliation claim under. Damages in this area are not controlled by statutory caps.

The Law Offices of Hoffman & Hoffman, P.A. fights for an employee to maintain employment in an environment free of discrimination and retaliation. An employee should not be subject to any form of discrimination while at work, nor should an employer retaliate against the employee if a claim is filed.

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