"Retaliation in the Workplace: Unveiling the Silent Threat"

Throughout my extensive career as an HR professional, with roles as an employment mediator, arbitrator, and EEO investigator, I have come across numerous instances and heard astonishing stories of companies resorting to retaliation against their employees. It is crucial for me to express my thoughts clearly in this article. While there are undoubtedly many commendable companies that prioritize ethical practices, there are instances where certain managers act independently, disregarding established protocols. In such situations, it falls upon the HR department to rectify the situation and restore order. It is important to recognize that not all HR personnel and departments are created equal. I have had the privilege of collaborating with some exceptional professionals in the industry who uphold their integrity unwaveringly. However, it is also worth mentioning that there are some individuals within HR who may benefit from additional training in interpersonal skills, as it would enhance their ability to interact positively with others. The primary purpose of the HR department is to safeguard the company's interests, manage the recruitment process, and address employee grievances. However, in certain significant cases within the company, they may struggle to strike a balance between serving the best interests of the employees and fulfilling their obligations to the organization that employs them.

Retribution closely resembles harassment, as harassment is merely a subset of retaliation. In the context of the workplace, retaliation can manifest in various detrimental forms, including unlawful relations and workplace harassment. However, retaliation extends beyond harassment and frequently encompasses adverse employment actions, such as termination, demotion, denial of promotions or salary increases, and other severe negative measures. When a colleague or supervisor is determined to retaliate against an employee, they may persist until they exact the ultimate revenge: causing the individual to lose their job while subjecting them to immense stress and anguish throughout the process.

What Is Workplace Retaliation?

Retaliation occurs when an employer punishes an employee for advocating for their rights to be free from employment discrimination, a discriminatory workplace culture, violations of laws intended to protect health and safety, and acting as a whistleblower. An array of federal and state laws are available to protect your rights when facing retaliation.

Here are some tactics employers use to retaliate against employees.

Demotion: Any employer decision to lessen your status, limit responsibilities, curtail seniority privileges associated with your position, or reduce your salary, commission, or bonus can be evidence of retaliation. Any decrease in hourly wage, salary, commission payments, paid time off, sick leave, or family medical leave under the Family and Medical Leave Act, or overtime opportunities, can be evidence of retaliation as well.

Passed over for a promotion or raise: Another common form of retaliation takes the form of refusing to promote or to provide a salary raise or bonus, when the employee has clearly earned the recognition, and which is denied because of that employee exercising legal rights to complain about workplace conditions or employer activities.

Denied opportunities: When an employer refuses to provide educational benefits, stops funding attendance at conferences and seminars, or suddenly stops paying for travel or membership in a trade or professional organization after an employee file a complaint about workplace conditions, there might be retaliation. Employers might try to hide their intentions by claiming financial reasons for curtailing benefits and opportunities, but the discovery process attendant to an investigation or civil suit can uncover the real motives.

Excessive micromanagement: Suddenly, your work is examined or reviewed by a hostile supervisor who is looking for mistakes and missteps and who is constantly hounding you to go faster, change direction, or removes your authority to act independently. This is retaliation if it is in the wake of a legally sanctioned complaint.

Salary reductions or loss of hours: Receiving a pay cut, losing regularly scheduled hours, or losing a preferred shift to accommodate family or childcare responsibilities can also be a form of retaliation. These changes can sometimes be quite subtle, surrounded by reasonable-sounding justifications, which are merely covers for retaliation.

Exclusion: Being intentionally kept out of meetings, training, or workplace social events can feel like gaslighting at times, especially when these exclusions are sudden, and work colleagues go silent around you without explanation.

Reassignment: Having your customary responsibilities reassigned to other employees or having your schedule modified to cause undue hardship are other forms of retaliation. Disappearing workplace accommodations to care for family members or children, loss of regularity in shift assignments, or sudden assignment to less favorable shifts that causes you undue hardship is also retaliation. Assigning mandatory weekend or overnight shifts, reducing or increasing shift lengths, or constantly changing shift assignments to prevent you from long-term planning are also considered retaliatory.

Bullying or harassment: Sometimes, employers rely on other employees to enforce their displeasure with your complaints and encourage others to bully or harass you at the workplace. These measures can be humiliating and demoralizing as they isolate you from your peers.

Excessive negative job performance reviews: After years of favorable reviews and job promotions, an employer turns on an employee who has complained about any form of workplace discrimination or illegality by changing the tone and content of job performance reviews.

Termination: The ultimate form of retaliation is termination, loss of salary and well-being, loss of status, and a blot on your employment record. Termination can be actual or constructive. Actual termination is just being fired, however, constructive termination is when your employer subjects you to intolerable working conditions for the purpose of causing you to resign. Over a course of time, your employer might reprimand you for trivial incidents, write up serial negative job reviews, or engage in a scheme to humiliate you at work among your peers and threaten to terminate you if you don’t resign. The pressure becomes so intense that you are forced to quit, which might be considered constructive termination.

When is Retaliation Prohibited?

Employees are safeguarded by federal law against retaliation in the following situations: when they raise complaints regarding workplace discrimination or harassment, either internally or to an external entity like the Equal Employment Opportunity Commission (EEOC). This protection holds true even if the complaint ultimately proves to be unsubstantiated, as long as it was made in good faith.

Furthermore, the law provides protection for employees who assist in EEOC investigations or act as witnesses in either EEOC investigations or litigation. A recent ruling by the Supreme Court affirms that an employee's involvement as a witness in an internal investigation is also protected. Additionally, various federal laws shield employees engaged in other types of activities, such as reporting unsafe working conditions as "whistleblowers," or taking legally-protected FMLA (Family and Medical Leave Act) leave.

Here are several instances of retaliation cases and the corresponding repercussions that come with them.

Circle K to Pay $8 Million to Resolve EEOC Disability, Pregnancy, and Retaliation Charges. Circle K Stores Inc. has entered into a nationwide agreement with the U.S. Equal Employment Opportunity Commission (EEOC) to resolve disability, pregnancy and retaliation discrimination charges.

Applebee’s to Pay $100,000 to Settle EEOC Lawsuit Over Sexual Orientation and Race Discrimination, Retaliation for Complaining Case No. 8:21-cv-01931-VMC-JSS Plant City Restaurant Subjected Black Employee to Racial and Homophobic Epithets, Then Forced Him to Quit.

Proctor Financial to Pay $67,000 to Settle EEOC Retaliation Suit and Avoid Trial?Case No. 2:19-CV-11911 Insurance Company Suspended Employee for Filing an EEOC Charge

NSN, LLC Will Pay $42,000 to Settle EEOC Disability Discrimination and Retaliation Suit ?Case No. 5:22-cv-00237 Testing Company Settles Federal Charges It Revoked Employee’s Disability-Related Accommodations and Fired Her When She Questioned the Decision.

Dental Health Products, Inc. to Pay $25,000 to Settle EEOC Retaliation Case/ ?Case No. 5:22-cv-00994 Sales Representative Was Terminated for Making a Protected Complaint of Sex-Based Discrimination.

Whiting-Turner to Pay $1.2 Million to Settle EEOC Racial Harassment and Retaliation Suit Case No. 3:21-cv-00753 Construction Company Subjected Black Workers to a Racially Hostile Work Environment, Then Fired Them After They Complained.

Burger King Franchise to Pay $60,000 to Settle EEOC Sexual Harassment and Retaliation Suit Case No. 1:22-cv-00049 Employer Allowed Abuse of Pregnant Employee and Fired Her After She Complained

It is evident that when reporting instances of retaliation or discriminatory acts that infringe upon your rights or those of your colleagues, companies will be held responsible for their actions. It is important to note that while certain companies may face legal disputes, it may not necessarily be due to their own actions, but rather because of the misconduct of individuals within the organization. However, the company's failure to address such misconduct can contribute to their involvement in such lawsuits.

What are the potential outcomes of reporting retaliation?

Reporting retaliation has the potential to result in an agency or court issuing an order that compels the employer to cease engaging in retaliatory actions. By reporting retaliation, workers may be able to reclaim unpaid wages, obtain monetary compensation, and seek other forms of remedies that can effectively restore their well-being following an instance of retaliation.

Q&A

Q Is it illegal to harass someone because they complain about job discrimination or talk to the EEOC?

A Yes. The laws enforced by EEOC protect you from being harassed because you file a job discrimination complaint with the EEOC, report discrimination to others, or help someone else report job discrimination, even if it turns out the conduct was not illegal.

Q Is it possible to establish retaliation if I can demonstrate that my employer's justification for terminating me was fabricated?

A ?It is possible. Given that your employer possesses the most accurate knowledge of the grounds for your dismissal, evidence indicating that the employer fabricated a false pretext implies the concealment of an illegal motive. Such evidence can potentially persuade a jury to conclude that the true, unlawful cause behind the termination was retaliation.

Q HOW DO I REPORT RETALIATION IN THE WORKPLACE?

A If you suspect that your supervisor is involved in retaliatory actions, it is advisable to address your complaint regarding retaliation directly with the Human Resources (HR) department or follow the procedures outlined in your employer's employee handbook.

Nevertheless, certain HR teams prioritize the company's interests over the rights of affected employees. If you find yourself in such a situation, it is crucial to seek guidance from a knowledgeable and experienced workplace retaliation attorney in your state. They can provide valuable advice on navigating this intricate scenario and help you determine the best course of action.

Q Can my employer retaliate against me if I no longer work at the company?

A No. An employer may not retaliate against job applicants, current employees, or former employees. For example, your employer cannot give you a bad job reference because you file a job discrimination complaint with the EEOC after you resign.

Q Can my employer punish me if I say that I am going to file a job discrimination complaint with the EEOC, but then decide not to?

A No. Your employer may not discriminate against or harass you because you threaten to file a job discrimination complaint with the EEOC, even if you decide not to file the complaint.

The laws on most claims enforce include?strict time limits?for filing a discrimination or retaliation complaint. If you believe an employer violated the law,?you must file a complaint with the appropriate agency right away. We are providing the information below to help you identify the right place to file a complaint, but?it is up to you to file any complaint with the right agency?within the appropriate time limits, and we cannot provide you with any legal advice.

• If you believe an employer discriminated or retaliated in violation of Title VII or the?Pregnant Workers Fairness Act, you must?file a charge with the EEOC.
• If you believe an employer discriminated or retaliated in violation of USERRA, you must?file a claim with VETS.
• If you believe a federal contractor is violating its responsibilities under Executive Order 11246, you must?file a complaint with the OFCCP

Hi, I'm Joseph George, a certified HR professional with experience in various areas of employment dispute resolution. In addition to being an HR professional, I am also a Florida Supreme Court certified county mediator, qualified arbitrator, and EEO investigator. I have had the opportunity to collaborate with HR firms, and federal, state, and local governments in resolving a wide range of employment issues.

If you believe that you or another employee is experiencing retaliation based on Discrimination, Age Discrimination, Disability Discrimination, FMLA Discrimination, LGBTQ Discrimination, Pregnancy Discrimination, Racial Discrimination, Religious Discrimination, or Sex Discrimination, we encourage you to get in touch with us. Our confidential consultation can help you discuss your case and discover how we can protect your workplace rights. Our team includes top-tier law firms, dedicated to providing the legal support you need during this difficult time. Don't wait any longer – reach out to us today! Email [email protected] www.georgeandgeorgeadr.com