Workplace Retaliation: What It Is, and Why You Should Avoid It

The urge to retaliate is a common human impulse. But when someone in management retaliates against an employee for exercising their legal right, then the act is illegal.

Data from the Equal Employment Opportunity Commission (EEOC) shows that retaliation topped the list of all claims filed with the agency in fiscal year 2020. Specifically, retaliation accounted for a whopping 55.8% of all charges filed, preceding disability, race, sex, age, and other protected classes.

As with all things noncompliant, there’s a cost to pay for retaliation — which is why you should steer clear of it.

What is retaliation in the workplace?

The Legal Information Institute says, “In an employment context, retaliation is punishment of an employee by an employer for engaging in legally protected activity, such as making a complaint of harassment to a governmental body, or participating in workplace investigations.”

Retaliation may include adverse employment actions such as the following:

• Disciplinary measures
• Denial or reduction of pay or benefits
• Demotion
• Unfair performance reviews (e.g., poor rating)
• Denial of promotion
• Job or shift reassignment
• Involuntary termination (e.g., layoff or firing)
• Blacklisting, such as advising other employers not to hire the employee
• Verbal or physical abuse
• Isolating the employee
• Increased scrutiny (e.g., micromanaging)
• Spreading false rumors about the employee
• Threatening to report or actually reporting the employee to the authorities (e.g., reporting immigration status)
• Making the employee’s work harder

Protected activities

Equal Employment Opportunity (EEO) laws forbid employers from discriminating against employees for exercising their employment rights. When an employee exercises these EEO rights, they engage in “protected activity.”

For example, it’s illegal to retaliate against employees for engaging in the following protected activities:

• Filing an EEO charge or lawsuit against the employer
• Being a witness in an EEO investigation or lawsuit
• Informing their manager about employment discrimination, including harassment
• Responding to inquiries during an employer’s investigation of reported harassment
• Refusing to adhere to orders that would lead to discrimination
• Rejecting sexual advances, or intervening to safeguard others
• Requesting reasonable accommodations for a disability or a religious purpose
• Asking colleagues and management about salary information to determine whether wage discrimination exists

Equal Employment Opportunity (EEO) laws forbid employers from discriminating against employees for exercising their employment rights. When an employee exercises these EEO rights, they engage in “protected activity.”

The different types of retaliation laws

The following federal legislations include statutes prohibiting retaliation:

• Title VII of the Civil Rights Act of 1964
• Equal Pay Act (EPA)
• Americans with Disabilities Act (ADA)
• Age Discrimination in Employment Act (ADEA)
• Fair Labor Standards Act (FLSA)
• Family Medical and Leave Act (FMLA)
• National Labor Relations Act (NLRA)
• Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)

In addition, the Occupational Safety and Health Administration’s (OSHA’s) Whistleblower Protection Program oversees over 20 federal retaliation laws, including the following:

• Occupational Safety and Health Act (OSHA)
• Affordable Care Act (ACA)
• Consumer Financial Protection Act of 2010 f
• Sarbanes Oxley Act
• Food Safety Modernization Act

Retaliation protections often extend to not only employees but also job applicants. Moreover, many state and local employment laws contain retaliation provisions, so be sure to check with these agencies for applicable statutes.

Real-world examples of retaliation, and the ramifications

As one attorney states in a SHRM article, “Employees can tack on a retaliation claim to other charges, because most employment laws have an anti-retaliation provision.” In other words, it’s not difficult for employees to file a retaliation claim. You can lower the risk of retaliation claims by understanding what situations are likely retaliatory in nature.

The EEOC offers examples of typical retaliatory behavior, based on prior cases. 

EEOC Example #1

“An employee who had filed several unsuccessful EEO complaints, subsequently sought promotions within the organization. The employee learned that her manager had placed information about the previous EEO proceedings in her personnel file.”

When contacted for reference checks, the manager divulged that the employee had filed several EEO charges.

“The EEOC found that the statements made during the reference check were retaliatory and further that the EEO information placed in the employee’s personnel file was unnecessary and hindered her promotional opportunities.”

EEOC Example #2

An employee claimed: “she was discriminated against during the promotional interview process. Two of the three interview panelists were managers involved in current or previous EEO complaints by the employee and one of the panelists attempted to influence the selection process by asking a question that paralleled a previous conflict between the panelist and the employee. A witness reported that he had heard the manager make the statement, “I don’t get mad, I get even” in reference to employees who make discrimination claims. EEOC found that the selection process was tainted by retaliatory conduct and ordered the agency to promote the employee.”

Other examples of the high cost of retaliation

• A Boston, MA employee who filed a retaliation and discrimination claim against her employer was awarded $10 million in punitive damages, plus $500,000 for emotional distress, and almost $389,000 in additional pay.
• A whistleblower who blew the whistle on a hedge fund was awarded over $600,000 in a retaliation claim she filed against the hedge fund.

“When employees complain about discrimination or harassment, employers must ensure that workers aren’t retaliated against for raising these issues. Otherwise, businesses may face legal liability even when the underlying claim isn’t proven,” according to an article published by the Society for Human Resource Management (SHRM). In other words, even if the employee cannot prove discrimination or harassment, then can win the retaliation case — if they’re able to prove retaliation, of course.

Fear of retaliation can keep employees silent

Employees who experience discrimination or harassment often don’t report it, due to fear of retaliation. They stay silent, instead of informing HR or someone in management. These fears are often justified, as research by the National Women’s Law Center found that over 70% of employees who reported harassment suffered retaliation for making the claim.

Employees may fear of colleagues isolating them, being the subject to office gossip, or their employer firing them. Consequently, employers should make every effort to create a strong anti-retaliation program with safe reporting procedures.

Developing an anti-retaliation program

According to OSHA, an effective anti-retaliation program consists of 5 key elements:

1. Management leadership, commitment, and accountability. Leaders should support a culture of anti-retaliation, lead by example, and be accountable for their responses to employees’ concerns.
2. System for listening to and resolving employees’ safety and compliance concerns. Establish multiple channels that employees can use to report safety and compliance concerns or violations. Take measures to protect the confidentiality of employees who report concerns or violations. Let employees know that the reporting system is available.
3. System for receiving and responding to reports of retaliation. As noted by OSHA, “Employees who believe they have experienced retaliation should have independent channels for reporting the retaliation; they should not be required to report to the manager who they believe retaliated against them.” All reports of retaliation should be taken seriously, and employees should have the ability to escalate the issue to higher-ups, if necessary.
4. Anti-retaliation training for employees and managers. Management should undergo comprehensive anti-retaliation training. On the employee side, training should cover relevant laws and regulations, what constitutes retaliation, employees’ right to report violations of the law, and details of the employer’s anti-retaliation program.
5. Program oversight. This involves monitoring and auditing the anti-retaliation program to determine whether it’s working and whether improvements are necessary.

Also, remember to include your position on retaliation in your employee handbook.