Many employees may not feel comfortable making a complaint against their employer because of fear of retaliation. Workplace retaliation is when an employer punishes or otherwise disciplines an employee for taking an action protected by the Equal Employment Opportunity Commission (EEOC).
These protected actions may be when an employee files a complaint or lawsuit against an employer, resists sexual advances from a manager, files a discrimination claim, and many others. When the employer responds with an adverse action against the worker for speaking out, retaliation is likely at play.
According to the EEOC, the standard for proving whether an action was retaliation “requires showing that the manager’s action might deter a reasonable person from opposing discrimination or participating in the EEOC complaint process.” The purpose of retaliation laws is thus to ensure that employees will actually say something when they’re treated unfairly instead of worrying about having to deal with the consequences.
Workplace retaliation and hostile work environments
Workplace retaliation and a hostile work environment are closely related concepts, often intertwined in cases where employees experience mistreatment or discrimination in the workplace. Here's how they are connected:
1. Retaliation as a component of hostile work environment
Retaliation can contribute to the creation of a hostile work environment. When an employer takes adverse actions against an employee for engaging in protected activities, such as reporting discrimination or harassment, it can foster an environment of fear, intimidation, and resentment. This, in turn, contributes to a hostile work environment where employees feel unsafe, unwelcome, and unable to perform their job duties effectively.
2. Retaliation aggravating hostility
In cases where employees are subjected to retaliation for reporting misconduct or exercising their legal rights, the hostility within the workplace is exacerbated. Employees who witness or experience retaliation may become disillusioned, distrustful of management, and hesitant to speak up about further issues, perpetuating a cycle of hostility and silence. This is a lack of psychological safety.
3. Legal overlap
Both workplace retaliation and a hostile work environment can violate various employment laws and regulations. Retaliation against employees for engaging in protected activities is prohibited under laws such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Occupational Safety and Health Act. Similarly, a hostile work environment based on protected characteristics such as race, gender, or disability is also unlawful under anti-discrimination laws. Employers who fail to address retaliation or create a hostile work environment may face legal consequences and liability.
4. Impact on employee wellbeing
Both workplace retaliation and a hostile work environment can have detrimental effects on employee wellbeing, mental health, and job satisfaction. Employees who experience retaliation or work in a hostile environment may suffer from stress, anxiety, depression, and other adverse health outcomes. This can lead to decreased productivity, increased absenteeism, and higher turnover rates, ultimately impacting the overall success and reputation of the organization.
In summary, workplace retaliation and a hostile work environment are interconnected phenomena that often coexist in environments where employees are subjected to mistreatment, discrimination, or reprisal for asserting their rights or speaking out against wrongdoing. Addressing both issues requires proactive measures from employers to foster a culture of respect, fairness, and accountability in the workplace.
For a workplace retaliation claim to be proven, these three components must be found:
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The employee took a protected action that the employer was aware of
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The employer took an adverse action against the worker
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The initial protected activity caused the subsequent adverse action
The EEOC says that retaliation is the most frequently alleged basis of discrimination in the federal sector. But what do these cases actually look like? Will you know if it’s happening to you?
Let’s take a look at 10 examples of workplace retaliation and a few real-life cases.
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10 examples of workplace retaliation—and a few times they’ve happened in real life
1. Firing an employee for making a complaint
Employees may file a lawsuit against their company or make a discrimination claim against their manager for many reasons. These may include being treated unfairly because of their race, religion, or gender, or they were harassed by someone while on the job.
Sometimes managers may respond defensively to these actions. They may try to take matters into their own hands by firing the employee to get rid of the problem. But doing so would be considered retaliation since the manager is responding to a protected action that the worker took against them (i.e., the complaint).
One real example of this scenario was in 2019 at Eagle United Truck Wash, as recorded by the EEOC. The only Black employee at the organization complained to management because of racial epithets and insults his coworkers directed at him. The company responded by firing him the same day he complained about it.
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2. Further harassment
Unfortunately, sometimes the retaliation comes in the form of even more discrimination or harassment. A manager may be enraged that the employee complained about them in the first place, and regardless of the outcome of the claim, the manager then takes out that anger on the worker by further harassing them directly because of what the employee did. This may be in the form of verbal or physical abuse or sexual harassment. If the manager makes the work environment hostile or uncomfortable in any way for the worker after they made a complaint, it is most likely considered workplace retaliation.
3. Demoting an employee
In other instances, a worker may get demoted. This could mean less pay or a different title that impacts the employee adversely in some way. The employer may be trying to show them their place, hoping they will not make other complaints, or they could be trying to send a message to other workers about what they will not tolerate. This example shows just how damaging these actions can be, as other employees may not feel like they can say anything in that environment if they were to experience discrimination or harassment.
Similarly, moving an employee to another department or office or reducing the number of hours they work against their will could also be forms of retaliation.
Example scenario:
Tom has been vocal about the lack of diversity and inclusion initiatives within his organization. As a result, his supervisor starts assigning him menial tasks and excludes him from high-profile projects that would showcase his skills and expertise. Despite Tom's repeated requests for meaningful assignments, his supervisor continues to overlook him, hindering his career advancement opportunities.
4. Hindering opportunities for promotion
Another example provided by the EEOC is a case where a worker filed unsuccessful complaints against her employer in the past and was now seeking a promotion in the same organization. Her manager had kept records about the complaint proceedings in her personnel file and discussed this information during the candidate review process.
The manager thus took retaliatory actions against the employee since saving the information in her file got in the way of her getting a promotion. The action was directly related to the initial protected complaints and played a major part in the decision not to promote her.
5. Taking away perks and benefits
The EEOC also dealt with a case in which a worker filed a complaint against their manager, and the manager responded by taking away the perk of using a government vehicle as part of their job. The manager still allowed another coworker to use the car during this time, so it was clearly a punishment. This is an example of how a simple action like taking away a benefit can be considered workplace retaliation.
6. Deliberately leaving them out
Another more subtle form of retaliation is when an employer starts leaving a worker out of meetings, activities, or other related events and communications because of the complaint they made. For example, maybe a leader at an advertising company decides to take an employee off of a big account for no reason other than that they complained about being harassed by a manager or coworker. This change may not be related to pay or title, but the employee will no longer get to participate in that project.
Sometimes these actions are obvious right away, but often it can take a while for the employee to notice the change. For example, it may take time for them to find out that their department has been meeting without them every week.
Example scenario
After filing a complaint about workplace safety violations, Alex notices a shift in how his colleagues treat him. They stop inviting him to team meetings, exclude him from important discussions, and avoid socializing with him during breaks. Despite his attempts to engage with them, Alex feels increasingly isolated and marginalized within the workplace.
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7. Giving poor performance reviews
The Boston Globe reported a story a few years ago about a woman of Haitian and African American descent who worked at the Treasury Department for the City of Boston as a senior administrative assistant. She filed a complaint against the city because she discovered she got paid less than her white coworkers. After she complained, her employer gave her poor job evaluations, which was found to be an act of retaliation. The plaintiff ended up winning $10.9 million in the case.
8. Unwarranted disciplinary action
Often retaliation aims to make an innocent person into a vilian by creating a "track record" of bad behavior and questioning that person's character.
Example scenario
Maria witnesses her coworker, John, being sexually harassed by their manager. Out of concern for John's wellbeing, she reports the incident to HR. Soon after, Maria starts receiving reprimands for minor infractions that were previously overlooked. Her manager begins scrutinizing her work and imposes unjustified disciplinary actions, creating a hostile work environment.
9. Salary reduction or withholding bonuses
The title of this type of workplace retaliation speaks for itself. After raising an issue or speaking up, an employee might see funds disappear with no explanation.
Example scenario
After advocating for better pay and benefits for employees, Lisa notices a sudden decrease in her salary without any explanation. Additionally, she is denied the annual bonus she was promised, despite meeting all performance targets. When she questions HR about the discrepancies, they cite budget constraints and refuse to address her concerns, leaving Lisa feeling betrayed and undervalued.
10. Negative performance reviews
Always been a top performer? You might not be anymore when facing workplace retaliation. Employees experiencing this might be put on unexplained employee improvement plans or receive negative feedback after a track record of solid work.
Example scenario
Jason speaks up about unethical practices within his department, which implicates some of his superiors. Subsequently, he receives a surprisingly negative performance review, citing issues that were never raised before. Despite his continued efforts to excel at his job, Jason's supervisor uses the review as grounds to deny him a raise and promotion, effectively punishing him for his whistleblowing.
These real-life and example scenarios show that retaliation can take many different forms, but those three elements are always there: the employee made a complaint or took another protected action, the employer responded adversely, and the response was due to that protected complaint.
Read more: The 5 Pillars of a Top-Notch Performance Review
Have you experienced workplace retaliation? Here's what happens next
Once you believe you've experienced workplace retaliation, seek help from the EEOC. That will trigger several steps. Here's a general overview of the process:
- Contact the EEOC: Before filing a formal complaint, it's advisable to contact the EEOC to discuss your situation and determine if your claim falls under their jurisdiction. You can contact the EEOC by phone or visit their website to find your nearest field office.
- Preserve relevant documents: Gather any relevant documents related to your complaint, such as emails, performance evaluations, witness statements, or records of discriminatory incidents. These documents will support your claim and provide evidence of discrimination or retaliation.
- File a charge of discrimination: If the EEOC determines that your claim falls under their jurisdiction, they will assist you in filing a Charge of Discrimination. This can typically be done online, by mail, or in person at an EEOC office. The charge must include details about the discrimination or retaliation you experienced, as well as information about the employer or organization involved.
- Investigation: After you file a charge, the EEOC will notify the employer and begin an investigation into your allegations. They may request additional information from both parties, interview witnesses, and review relevant documents to assess the merits of your claim.
- Mediation (optional): In some cases, the EEOC may offer mediation as an alternative method of resolving the dispute. Mediation is voluntary and confidential, and it involves a neutral mediator facilitating discussions between you and the employer to reach a mutually agreeable resolution.
- Investigation outcome: Once the investigation is complete, the EEOC will issue a determination regarding the validity of your claim. If they find reasonable cause to believe that discrimination or retaliation occurred, they may attempt to negotiate a settlement with the employer. If a settlement cannot be reached, you may have the option to pursue further legal action.
- Right to sue letter: If the EEOC is unable to resolve your claim, they will issue you a Right to Sue letter, which grants you permission to file a lawsuit against the employer in federal court. You typically have a limited time frame (usually 90 days) from the date of receiving the Right to Sue letter to file a lawsuit.
It's important to note that the specific procedures and timelines for filing an EEOC claim may vary depending on the nature of the discrimination or retaliation alleged and applicable state or local laws. Additionally, seeking legal advice from an experienced employment attorney can help you navigate the process and understand your rights and options.
