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What Protected Abilities Do I Have Against Retaliation

Non-discrimination laws prohibit employers from allowing the creation of workplaces where individuals are made to feel uncomfortable at work because of their protected characteristics. Name calling, exclusion from activities, unwanted sexual attentions, obscene or offensive jokes, and vulgar or discriminatory posters can all create a hostile working environment that can subject employers to claims of workplace harassment or retaliation.

Generally, there are two types of harassment claims — 1) quid pro quo and 2) hostile work environment. In a quid pro quo harassment claim, an individual is alleging that a senior person in the reporting chain, often a direct supervisor, demanded favors (usually sexual) from that individual in order for him or her to obtain or keep a job or a benefit. In a hostile work environment claim, the employee is alleging that there was a course of conduct that was unwelcome, based on a protected characteristic, and was severe or pervasive enough to create an abusive or offensive working environment. Upon receiving any reports or complaints of harassment, it is a company’s obligation to promptly and thoroughly investigate the claim and determine whether they find it to be credible. Following a determination that harassment occurred, the company’s next obligation is to take steps that stop the harassment.

A claim of retaliation comes about after an employee who engages in some type of legally-protected activity, such as filing a claim of workplace harassment, taking workers’ compensation or pregnancy-related leave, or fulfilling a jury duty obligation, then suffers an adverse employment action, such as being let go. The individual is essentially asserting that the adverse action was taken because he or she engaged in the legally-protected activity and that the adverse action was the employer’s way of “getting back at,” or retaliating against, the individual. As with a discrimination claim, to combat a retaliation claim, an employer needs to demonstrate a legitimate business reason for the employment action that was taken.

How to Protect Yourself Against Retaliation

Retaliation is illegal. Since retaliation is another form of harassment, take the very same steps to report the behavior as you would when reporting sexual harassment.

  • Tell the retaliator to stop.
  • Keep a record.
  • Tell someone. This can be done by contacting the human resources department or contacting the EEOC.

Tell the Retaliator to Stop

Approach the person directly and explain that his or her behavior is unacceptable. Often in retaliation situations, direct conversation is not easy and, depending on the situation, may not be safe. Writing a letter or email is perfectly acceptable. Make sure to keep a copy of the letter.

Keep a Record

Record any and all details about retaliatory incidents, including:

  • Dates and times.
  • Who was involved?
  • Details of any communications you have with the retaliator.

Tell Someone

Report the incident or incidents to a supervisor or to your company’s human resources department immediately. Keep a record of any report you give. The company should already be taking measures to investigate and resolve the harassment incident, but now they must address retaliation as well. This should be handled as a very high priority to keep the harassment victim safe.

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