Labor and Employment

Proving Workplace Retaliation

Updated by Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley
If you have been punished for exercising your workplace rights, you may have a retaliation claim.

Retaliation occurs when an employer takes a negative action against an employee because the employee has complained about illegal conduct, such as discrimination, harassment, failure to pay overtime, or workplace safety violations. Most of the laws that provide workplace rights to employees also prohibit retaliation. The reason is simple: These laws are enforced almost entirely through employee complaints. If employees could be punished or fired for complaining about violations, employers could break the law with impunity.

Even though retaliation is illegal, that doesn’t mean it never happens. Read on to find out what retaliation is, how to prove it in court, and what to do if you are facing workplace retaliation.

Which Laws Protect Employees From Retaliation?

Many of the employment laws that give employees workplace rights also protect employees from retaliation, including the following federal laws:

  • Title VII of the Civil Rights Act
  • the Age Discrimination in Employment Act
  • the Americans with Disabilities Act
  • the Equal Pay Act
  • the Occupational Safety and Health Act, and
  • the Fair Labor Standards Act.

These laws are enforced by various federal agencies. For example, the Equal Employment Opportunity Commission (EEOC) enforces the first four laws listed above. Workers who have been retaliated against for exercising their rights under these laws may file a retaliation complaint with the EEOC.

Many state and local laws that protect employees also prohibit retaliation, such as discrimination and harassment laws, family and medical leave laws, wage and hour laws, workers’ compensation laws, and more.

Who Is Protected?

If you report conduct that you reasonably believe, in good faith, violates one of these laws, you are protected from retaliation. The legal protection from retaliation covers:

  • Current and former employees. For example, if you were forced to quit your job after you complained about sexual harassment and your employer failed to act, it would be retaliatory for your former employer to try to prevent you from getting a new job by giving you a negative reference.
  • Employees who complain about conduct that is not illegal. As long as you have a reasonable, good faith belief that you are complaining about behavior that violates the law, you are protected from retaliation. If it later turns out that you were wrong (for example, you thought pay disparities between male and female managers at your company were based on sex discrimination, but they were in fact based on seniority), that doesn’t mean your employer can punish you for your complaint.
  • Employees who speak out for another employee. You are protected from retaliation not only for complaining that you have been mistreated, but also for protesting the unfair treatment of other employees or for participating in a workplace investigation of illegal conduct.

What Is Protected Activity?

Your employer may not retaliate against you for two types of protected activities. The first is opposing illegal practices by your employer. You are engaged in this type of protected activity if you refuse to work in dangerous conditions, tell your manager to stop sexually harassing you, complain to your company’s HR department that you believe you are being discriminated against based on your age, or file a wage claim with your state’s labor department for unpaid overtime.

The other type of protected activity is participating in an investigation, hearing, or lawsuit about possible illegal practices by your employer. For example, if you speak to a company investigator about a coworker’s sexual harassment complaint or testify in a discrimination lawsuit against your company, you are protected from retaliation.

Proving Retaliation

To prove to a court or administrative agency (such as the federal Equal Employment Opportunity Commission) that you were retaliated against, you must show all of the following:

  • You engaged in a protected activity, such as complaining about discrimination or talking to an OSHA investigator about workplace safety hazards.
  • You were fired, disciplined, or otherwise punished by your employer.
  • There is a causal relationship between your protected activity and the action taken against you.

It isn’t enough to show that you complained and were fired, for example. You must also show that you were fired because of your protected activity, rather than some other legal reason. Sometimes, an employer makes this part of your case easy by admitting the causal link. For example, if you complain that your manager is sexually harassing you, and your manager fires you, saying “I can’t have disloyal employees who go behind my back to the HR department,” you have strong evidence that you were fired for your complaint.

In the absence of an admission like this, you will have to use indirect evidence to show that you were fired because of your complaint. Timing is key to proving this link. For example, if your performance reviews have always been excellent, but you were fired for “poor performance” just a few days after filing a complaint with your state labor department, that looks like retaliation.

If You Are Facing Retaliation

If you have been fired for complaining about illegal activity, or you believe that your employer has otherwise retaliated against you, talk to an employment lawyer right away. A lawyer can explain how to protect yourself from retaliation—or at least, how to make a record of it, which you can later use in court—if you are still employed. A lawyer can also help you figure out how strong your claim is and how best to pursue it. (For more information, see How Does an Employment Lawyer Evaluate a Retaliation Case?)

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