San Francisco Retaliation Lawyer
HOW TO RECOGNIZE RETALIATION AT WORK – AND WHAT TO DO ABOUT IT
It’s a common enough workplace narrative: employees choosing to suffer from continuous harassment, discrimination, and/or a hostile work environment rather than coming forward with a complaint for fear of further hostility or possibly losing their jobs. Indeed, the fear of retaliation at work often discourages employees from coming forward about the illegal actions of their employers. While the decision to stand up against the illegal employment actions is never easy, an employee should not be intimidated against taking action by the fear of retaliation at work. Fortunately, federal and state laws, as well as agencies such as the Equal Employment Opportunity Commission (EEOC) (link to https://www.eeoc.gov/laws/types/retaliation.cfm), exist to protect employees against any adverse action taken against them for engaging in a protected activity—and the scope of this protection is broader than many realize.
KNOW WHAT CONSTITUTES RETALIATION
Retaliation is an adverse action that an employer takes against an employee for engaging in a legally protected activity. Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). To prove retaliation, an employee must show that he or she: 1) engaged in a protected activity, 2) the employer engaged in an adverse employment action against the employee, and 3) there is a causal link between the protected activity and the employer’s action. See Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028 (2005).
What is an Adverse Employment Action?
The most common example is that employers cannot fire an employee for reporting or filing a lawsuit for discrimination or harassment against them. However, what many employees don’t realize is that termination is not necessary for a claim of retaliation. Adverse actions may include: suspension, demotion, an unwarranted negative performance review, job reassignment, paycheck reduction, and denial of a promotion.
You should note that adverse actions may take on a more subtle form. Courts have found that any action that might dissuade a reasonable person from engaging in protected activity is considered retaliation. Other examples of adverse actions giving rise to a retaliation claim may include: scrutinizing work or attendance more closely than that of other employees (without justification), exclusion from staff meetings or training activities, conduct such as derogatory, humiliating, and threatening statements, or actions that interfere with the employee’s work performance.
What are Protected Activities?
One of the most important components for a claim of retaliation is whether an employee is engaged in a protected activity. Protected activities include, but are not limited to:
- Filing or witnessing a charge, complaint, or lawsuit,
- Refusing to follow orders that would result in discrimination, harassment, or other illegal business practices,
- Communicating with a supervisor and/or manager about employment discrimination or harassment,
- Resisting sexual harassment or discrimination,
- Talking about wages or compensation with a manager or co-workers, regardless of the involvement of a union or other formal organization.
Obviously, most employers are not going to admit to retaliation. Therefore, agencies and courts often rely on the timing of an employer’s adverse action, and look at whether the employer had knowledge of an employee’s complaint or other protected activity.
It is important to note that there are factors that may potentially defeat a retaliation claim. For example, it is not considered retaliation if the employer disciplines or terminates an employee, for example, for poor job performance or for violating the employer’s rules. If you have a possible claim for retaliation, gather as much evidence as possible to prove the connection between your legally protected action(s) and the employer’s retaliation, including your history of complaints, emails, text messages, and other documents such as positive performance reviews.
WHAT TO DO IN CASE OF A POSSIBLE RETALIATION CLAIM
Consult with an attorney as soon as you suspect a possible workplace retaliation. An attorney experienced in this area will help in determining whether you have a case and what steps you need to take in order to assert your rights. In addition, your attorney will also ensure that you meet all the applicable deadlines for filing charges.