For many, workplace discrimination evokes a scenario in which an employer terminates, refuses to hire or promote or denies an employee a work-related benefit solely on account of an individual’s race, sex, national origin, color or religion. The most common complaint filed with the Equal Employment Opportunity Commission (EEOC), however, concerns an employee’s actions. Retaliation occurs when an employer penalizes an employee who engages in legal activity.
Retaliatory actions by employer actions can range from changes in work assignments and poor performance reviews designed to drive an employee to quit, to demotion and, in some cases, direct termination. Harsh financial and legal consequences result from a successful retaliation claim. In addition to reinstating the employee, employers may have liability for compensation of back wages, lost benefits and emotional distress.
Elements of a retaliation claim
As a behavioral-based claim, retaliation can apply in the context of almost any type of discrimination claim. A recent decision by the U.S. District Court for the Middle District of Pennsylvania provides an example of how the same legal standards can apply in different contexts.
The plaintiff attached retaliation claims to both a disability claim under the Americans with Disabilities Act (ADA) and a claim of racial discrimination under Title VII of the Civil Rights Act of 1964 as well as under state law. Both retaliation claims failed, since in neither instance, the employee satisfied the requirements for retaliation:
- Engagement in a protected activity
- Suffer an adverse employment action, i.e., punishment
- Establish a connection between the protected activity and the adverse action
As often occurs in workplace discrimination claims to which retaliation attach, the plaintiff did establish sufficient evidence to permit a claim (based on disability discrimination) independent of retaliation.
The scope of workplace discrimination extends beyond hiring, compensation and promotion. Despite a lack of attention, retaliation claims protect workers in their actions and relationships with colleagues and management. Attorneys who understand the nature of how an employee’s rights can conflict with an employer’s interests can provide assistance.