Retaliation: Build Your Case Against Workplace Retaliation!

Retaliation in the workplace occurs when your employer takes some adverse action against you or a member of your family that follows closely after you either have made a formal complaint to certain government agencies (such as the Labor Department, or the Equal Employment Opportunity Commission) or have participated in the investigation of a complaint.

Certain federal and state laws prohibit an employer from retaliating against an employee because of that employee exercising his or her rights.

There are provisions against retaliation in:

• the federal labor laws


• federal and state wage and hour laws


• federal and state laws against discrimination


• federal and state occupational safety and health laws


• state worker compensation laws


• federal whistleblower laws


• federal corporate ethics laws

Retaliation claims generally have three parts to them, which you as the person bringing the claim must set forth and demonstrate by evidence. The three elements are typically: (1) a protected action, (2) an adverse action, and (3) a connection between (1) and (2) that demonstrates that (1) caused (2). For example, with the EEOC, there are three essential elements of a retaliation claim:

1. there was opposition to discrimination or participation in covered proceedings (such as an investigation);


2. there was adverse action taken against the complainant; and


3. there was a causal connection between the protected activity and the adverse action.

Frequently in instances of retaliation, there is a pattern of escalating behavior over time, which -– if it can be made clear –- helps to support your claim that your employer retaliated against you for something you did. So, as soon as you think that your employer may be retaliating against you, you need to start preparing a listing of events -- in chronological order -- detailing actions you took and actions of the employer’s managers and supervisors that you feel are adverse to you. The best way to do this listing is on a computer, because you can easily insert rows or lines for events that come to your mind later, as you reread the chronology.

Try to backtrack to earlier events and be as detailed as possible. Continue the chronology from the present time while you continue to reconstruct and recapture past events. Remember, it is close linkage in time between the protected activity and the adverse action that helps to demonstrate the causal connection supporting the retaliation claim.

Subsequent posts will address more detail about retaliation.

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Retaliation: Plaintiffs' Lawyers Benefited

Retaliation by employers against workers suffered a blow from the U.S. Supreme Court in a major decision handed down in June 2006. The Court's decision now unifies heretofore divergent circuit court rulings on what retaliation lay within the scope of the anti-retaliation provision of Title VII of the Civil Rights Act of 1964.

In Burlington Northern & Santa Fe Railway Co. v. White (05-259), the Court held that the retaliation provision of Title VII of the Civil Rights Act "does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace." The Court also held that "the anti-retaliation provision covers only those employer actions that would have been materially adverse to a reasonable employee or applicant."

The Court's view was that the anti-discrimination provision of Title VII seeks a workplace where individuals are not discriminated against because of their status, while the anti-retaliation provision seeks to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the Act's basic guarantees.

The Court has eased the standard by which courts will assess whether adverse actions taken by an employer constitute impermissible retaliation.

The Court determined that "materially adverse" means that "the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."

Making clear that "[a]n employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace," the Court included such retaliation among those forms prohibited by Title VII.

An anti-retaliation provision limited to employment-related actions would not deter the many forms that effective retaliation can take. Hence, such a limited construction would fail to fully achieve the anti-retaliation provision's "primary purpose," namely, "[m]aintaining unfettered access to statutory remedial mechanisms."

The Court's ruling states: "[W]e conclude that Title VII's substantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm. We therefore reject the standards applied in the Courts of Appeals that have treated the anti-retaliation provision as forbidding the same conduct prohibited by the anti-discrimination provision and that have limited actionable retaliation to so-called 'ultimate employment decisions,'" (decisions such as firing, suspension, demotion).

The Court's ruling has handed plaintiffs' discrimination and retaliation attorneys a new, stronger tool.