What counts as retaliation in the workplace?

Many people have an idea of what discrimination in the workplace is. But while discrimination claims on the basis of sex, race, age or another protected category are a serious issue, the most common type of discrimination claim is something else: retaliation.

In fiscal year 2018 alone the Equal Employment Opportunity Commission (EEOC) recorded 4,344 discrimination charges in the state of California. Retaliation claims accounted for half of those, outpacing complaints related to any protected category. That rate mirrors federal figures as well. What qualifies as retaliation might surprise you.

Retaliation can be subtle

Retaliation occurs when an employer punishes, penalizes or harasses a worker because they were involved in a discrimination claim. Some retaliatory behaviors are obvious, actions such as threats, demotions or firings. It is also illegal for an employer to make work conditions terrible in order to get someone to quit. This is called constructive discharge.

But retaliation can take more subtle forms. A manager abruptly assigning the employee to more difficult shifts, for example, or giving noticeably worse performance reviews without explanation. The EEOC provides some other specific instances from real cases, including:

  • Managers involved in a discrimination complaint trying to influence whether that employee would later get a promotion
  • A manager taking away the use of a government car after an employee filed a complaint – while letting another worker continue to use the vehicle
  • An employee’s discrimination complaint being described by superiors as “unprofessional,” “highly offensive” and “bad for morale.”

Retaliation claims

According to the EEOC, the number of discrimination-related findings based on a retaliation claim has outpaced other types of discrimination claims recently. The commission also points out that, in many cases, a straightforward discrimination claim might fail – only for the follow-up retaliation claim to end with a discrimination finding.

When employers retaliate, it isn’t always obvious. If you believe behavior at your workplace may be considered retaliatory, it might be a good idea to talk to an attorney to determine your options.

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