Have you ever been fired or threatened to be fired for reporting or complaining about something illegal or unethical happening at your workplace? If so, you may have been a victim of “retaliatory discharge,” a form of wrongful termination that violates your rights as an employee.
Retaliatory discharge is when an employer fires or otherwise punishes an employee for engaging in a legally protected activity, such as filing a discrimination or harassment claim, reporting a safety violation, or participating in a whistleblower lawsuit. Retaliatory discharge is prohibited by various federal and state laws that aim to protect employees from employer retaliation and to encourage them to report wrongdoing in the workplace.
In this post, we will explain what constitutes retaliatory discharge, what are the legal protections for employees, how to prove a case of retaliatory discharge, and what remedies are available for victims of retaliatory discharge.
What Constitutes Retaliatory Discharge?
Retaliatory discharge occurs when an employer takes an adverse action against an employee because the employee engaged in a protected activity. An adverse action is any action that negatively affects the employee’s employment status, such as termination, demotion, suspension, pay cut, transfer, or reassignment. A protected activity is any activity that the law recognizes as lawful and beneficial for the public interest, such as:
- Filing a complaint or lawsuit against the employer for discrimination, harassment, wage and hour violations, or other illegal or unfair practices;
- Reporting the employer to a government agency for violating the law or regulations, such as health, safety, environmental, or labor standards;
- Participating in an investigation, hearing, or litigation as a witness, plaintiff, or defendant in a case involving the employer;
- Opposing or refusing to participate in any unlawful or unethical conduct by the employer or co-workers;
- Exercising or requesting a legal right or benefit, such as family and medical leave, workers’ compensation, or reasonable accommodation for a disability;
- Whistleblowing, or exposing the employer’s fraud, corruption, or misconduct to the public or the authorities.
The list above is just a sampling of the types of activities that may be other activities that are protected by specific laws or policies. The key point here is that the employee must have a reasonable and good faith belief that the activity they engaged in was lawful and justified, and that the employer’s action was motivated by the employee’s participation in the activity.
What are the Legal Protections for Employees?
Employees who are subject to retaliatory discharge have various legal protections under federal and state laws. Some of the most important federal laws that prohibit retaliatory discharge are:
- Title VII of the Civil Rights Act of 1964, which prohibits discrimination and retaliation based on race, color, religion, sex, or national origin;
- The Age Discrimination in Employment Act of 1967, which prohibits discrimination and retaliation based on age (40 or older);
- The Americans with Disabilities Act of 1990, which prohibits discrimination and retaliation based on disability;
- The Family and Medical Leave Act of 1993, which prohibits retaliation for taking or requesting family or medical leave;
- The Fair Labor Standards Act of 1938, which prohibits retaliation for complaining about minimum wage, overtime, or child labor violations;
- The Occupational Safety and Health Act of 1970, which prohibits retaliation for reporting or refusing to work in unsafe or unhealthy conditions;
- The Sarbanes-Oxley Act of 2002, which prohibits retaliation for whistleblowing on corporate fraud or securities violations;
- The False Claims Act of 1863, which prohibits retaliation for whistleblowing on government fraud or waste.
In addition to these federal laws, many states have their own laws that prohibit retaliatory discharge for various reasons, such as reporting or refusing to participate in illegal activities, exercising or requesting a legal right or benefit, or performing a public duty or service. Some states also recognize a common law exception to the at-will employment doctrine, which allows employees to sue their employers for retaliatory discharge if the termination violates a clear public policy.
How to Prove a Case of Retaliatory Discharge?
To prove a case of retaliatory discharge, the employee must show that:
- They engaged in a protected activity;
- The employer knew or suspected that they engaged in the protected activity;
- The employer took an adverse action against them; and
- There was a causal connection between the protected activity and the adverse action.
The employee can use direct or circumstantial evidence to support their claim, such as:
- Statements or documents from the employer or co-workers that indicate a retaliatory motive or intent;
- The timing or sequence of events that suggest a link between the protected activity and the adverse action;
- The employer’s deviation from its normal policies or procedures in taking the adverse action;
- The employer’s inconsistent or pretextual reasons for taking the adverse action;
- The employer’s history or pattern of retaliation against other employees who engaged in similar activities.
The employer can defend against a claim of retaliatory discharge by showing that:
- The employee did not engage in a protected activity;
- The employer was not aware or did not care that the employee engaged in the protected activity;
- The employer took the adverse action for a legitimate and non-retaliatory reason; or
- The employer would have taken the same action regardless of the employee’s protected activity.
The employer can use direct or circumstantial evidence to support their defense, such as:
- Statements or documents from the employer or co-workers that indicate a legitimate and non-retaliatory motive or intent;
- The timing or sequence of events that suggest a lack of connection between the protected activity and the adverse action;
- The employer’s adherence to its normal policies or procedures in taking the adverse action;
- The employer’s consistent and credible reasons for taking the adverse action;
- The employee’s poor performance, misconduct, or other valid grounds for termination.
What Remedies are Available for Victims of Retaliatory Discharge?
If an employee prevails in a claim of retaliatory discharge, they may be entitled to various remedies, such as:
- Reinstatement to their former position or a comparable one;
- Back pay, or the wages and benefits they lost as a result of the termination;
- Front pay, or the wages and benefits they would have earned in the future if they had not been terminated;
- Compensatory damages, or the amount of money that would compensate them for their emotional distress, pain and suffering, or other non-economic losses;
- Punitive damages, or the amount of money that would punish the employer for their malicious or reckless conduct and deter them from repeating it;
- Attorney’s fees and costs, or the amount of money that would cover the employee’s legal expenses.
The availability and amount of these remedies may vary depending on the specific law that applies to the case, the facts and circumstances of the case, and the discretion of the judge or jury.
How to Protect Yourself from Retaliatory Discharge?
If you are an employee who has been or may be subject to retaliatory discharge, you should take the following steps to protect yourself and your rights:
- Document everything related to your protected activity and your adverse action, such as dates, times, names, places, witnesses, conversations, emails, letters, memos, or other evidence;
- Keep copies of your performance evaluations, pay stubs, contracts, policies, or other documents that may be relevant to your case;
- Report the retaliation to your employer’s human resources department, union representative, or other appropriate authority, and follow the internal grievance or complaint procedures;
- File a charge of discrimination or retaliation with the EEOC or the equivalent state or local agency, and follow their instructions and deadlines;
- Consult with an experienced employment discrimination attorney, who can advise you on your legal options, represent you in negotiations or litigation, and protect your interests and rights.