There are a number of state and federal laws that help protect employees from discrimination and harassment in the workplace. What many employees in Los Angeles may not be aware of is the fact that these laws also protect them from retaliation. This essentially means that employers cannot punish or penalize workers for filing complaints about discrimination or harassment or participating in workplace investigations. In such cases "punishment" could include a variety of employment actions from being passed up for a promotion to facing a pay cut or being denied a raise or training opportunities.
If you believe that your employer is retaliating against you for engaging in legally protected activity, it is imperative that you contact an experienced Los Angeles workplace retaliation lawyer who will remain on your side, fight for your rights and help ensure that your legal rights and best interests are protected.
What Does Workplace Retaliation Look Like?
Retaliation in the workplace is the most frequently alleged basis of discrimination in the workplace, according to the U.S. Equal Employment Opportunity Commission (EEOC). Your employer cannot fire you or retaliate against you if you are engaged in the following types of protected activities:
- You have filed a complaint with the EEOC or are a witness in a complaint, investigation or lawsuit.
- You have been communicating with a supervisor or manager about employment discrimination and/or harassment.
- You answered questions during an employer investigation of alleged harassment.
- You refused to follow orders that would result in discriminatory behavior.
- You resisted sexual advances or stood up to protect a colleague from harassment.
- You requested accommodation for a disability or to pursue a religious practice.
- You asked managers or colleagues about salary information to uncover potentially discriminatory wages.
It is important to note that participating in the complaint process is protected from retaliation under all circumstances. Other acts in opposition of workplace discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate federal laws. However, engaging in protected activity does not necessarily shield employees from discipline or discharge.
If the negative action was motivated by non-retaliatory and non-discriminatory reasons, employers may discipline or even terminate employees. However, our Los Angeles employment lawyers often observe that when there has been discrimination or harassment in a workplace, an adverse action taken against employees who complained or participated in the complaint process, tends to be retaliatory in nature. Employers are also not allowed to do anything in response to a protected activity that would discourage someone from resisting or complaining about future discrimination.
Here are some concrete examples of adverse or negative action an employer might take against an employee as retaliation for participating in protected activity:
- Reprimanding the employee or giving a job performance evaluation that is unfair or poorer than it should be.
- Transferring the employee to a less desirable position.
- Engaging in verbal or physical abuse.
- Threatening to make or actually make reports to authorities. This might include threatening to report an employee to immigration officials or to the police.
- Increasing scrutiny of an employee without proper justification.
- Spreading lies or rumors about the employee.
- Making the person's work more difficult by changing his or her scheduling or moving him or her to a different location that is difficult to travel to.
- Changing the employee's job duties to something less desirable.
- Imposing a salary reduction.
How Can You Prove Retaliation in the Workplace?
Under state and federal laws, your employer cannot punish you for asserting your rights. Employees who stand up against discrimination or harassment are protected from retaliation. However, it is a fact that retaliation still happens in U.S. workplaces. More than a third of the discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) in the past few years, include a retaliation claim.
When an employee files a lawsuit claiming retaliation by the employer, he or she will need to prove three elements:
You engaged in a protected activity.
All federal laws that prohibit employers from discriminating against their employees also prohibit retaliation against workers who engage in protected activity under these laws. So, when employees oppose any act that is deemed illegal by federal laws such as discrimination or harassment, are in fact engaged in protected activity. The Supreme Court has ruled that employees are protected against retaliation not just when they complain directly of harassment or discrimination, but also when they participate in an internal investigation of such a complaint, for example as a witness.
Generally speaking, the moment an employee lets his or her employer know that the latter has engaged in discriminatory or harassing behavior, that employee is protected from retaliation. This includes situations where an employee is asked to discriminate, but refuses to do so.
Employees who file a discrimination or harassment complaint with the Equal Employment Opportunity Commission (EEOC) or some other state agency, participate in an investigation conducted by such an agency or participate in a discrimination or harassment lawsuit are also protected from any type of retaliation by their employer. In many cases, employees who participate in a company's own internal investigation also receive protections from retaliation under these laws.
The employer took adverse or negative action.
Any type of negative or adverse action that an employer takes against an employee may constitute retaliation under federal and state laws, particularly if such an action might deter an employee from reasonably making a complaint or from engaging in protected activity. Examples of negative or adverse actions from the employer include termination, salary cuts, negative job evaluations, demotion, transfer, change in job assignments or job duties (usually for the worse) or modifications in other terms and conditions of employment.
Your engagement in protected activity caused the retaliation.
In a workplace retaliation case, it is often not sufficient for employees to just show that they engaged in protected activity and were subjected to an adverse job action. They also have to show evidence that the two events are connected. In other words, employees must show that their engagement in the protected activity caused the retaliation. For example, if a female employee who complained about sexual harassment finds her position eliminated, not as part of layoffs or cost-cutting measures, but as an isolated action, she would have a strong retaliation case because she may be able to prove causation.
In most cases, it can be challenging to prove direct causation unless an employer openly admits it or makes a verbal or written threat. Typically, employees in such cases must present evidence of retaliation such as the timing of the adverse action. For example, if the adverse action comes in the wake of the employee complaining, there is a strong case for retaliation. An employee who is claiming retaliation should also be able to show that the person who took the adverse action knew about the complaint or about the protected activity in which the employee was engaged. If the employer had no knowledge of the protected activity of the complaint, obviously, retaliation would be difficult to prove.
In some cases, an employee may also be able to show that the employer had no other reason to take a negative action. This is particularly true if the reason the employer stated for the negative action doesn't add up or make sense. For example, if an employee engaged in protected activity gets a pay cut because of "poor performance," but has had excellent performance reviews in the past, the employee may able to show that there is no other explanation or motivation for the negative action other than retaliation.
What to Do If You're Facing Workplace Retaliation
If you have been victimized by retaliation in your workplace, please remember you have legal rights and may be entitled to substantial compensation. How much is your retaliation claim worth? Here are a few steps you can take in order to protect your rights and build your case against your employer:
Remain calm. We know this can be extremely difficult especially if you have been harassed or discriminated against at work and are now facing retaliation for exercising your rights and complaining about the illegal activity. But, being calm in such a situation will work to your advantage. When you explode or say certain things to your employer, you may be providing ammunition to your employer to justify their negative or adverse actions against you.
Document everything. A paper trail always helps when you are looking to file a workplace retaliation lawsuit. If you have written notice of a negative or adverse action, file that away. Save all emails, internal memos, instant messages, texts and other communications that may serve as evidence that the negative or adverse action against you was a form of retaliation.
Communicate proactively. Try to speak directly with whoever is committing the retaliation or condoning it. Proactively communicating to informally resolve retaliation or any kind of miscommunication that might have given the appearance of retaliation is a good first step. Talk to your manager, supervisor or your human relations officer, if your employer has one.
Use internal procedures. Several companies have strong policies and procedures that prohibit workplace discrimination, harassment and retaliation. Take a good look at your company's manual. Your first step may be to file an internal complaint. This process is typically set forth in employee handbooks or communicated by the human resources department. Employees usually have internal complaint systems in place to resolve incidents of discrimination or harassment.
Stay away from social media. While social media can be a great way to communicate and keep in touch, it can be harmful if you have an ongoing employment lawsuit. Most social networks lack proper privacy protections and as a result, it is relatively simple for your employer's attorney to access posts, images or videos in your social media account and use them against you – even if they are seemingly harmful. Please remember that anything you post online including on social media can be used against you in your employment lawsuits. Our employment lawyers recommend that you take down social media accounts and not post anything online until your case is resolved.
Contact the authorities. If you have been physically or sexually assaulted, it is important that you file a police complaint immediately. Contact your local law enforcement agency right away. You can also file a complaint with the EEOC, which has 50 field offices around the country. You may also begin the discrimination charge process online through the EEOC's web portal. This is all free to the public, which can be a valuable resource to individuals who cannot afford private legal counsel. At Kingsley & Kingsley, we offer a no-win-no-fee guarantee, which means, we don't charge you any fees unless you receive compensation for your losses. Our fees are usually a percentage of your recovery.
Retain an employment lawyer. It might be a good idea to seek legal representation regardless of whether or not you file a discrimination complaint within the company or through the EEOC. Legal counsel can be extremely valuable when it comes to guiding you through a technical process and further expand your knowledge of employment law. You may also decide to file a workplace retaliation lawsuit against your employer if the issue is not resolved otherwise.
Contacting an Experienced Lawyer
If you have been discriminated against, harassed or retaliated against at work, you may be able to seek compensation for damages and losses ranging from medical expenses, back pay, front pay, past and future pain and suffering and emotional distress. Our lawyers understand that an employment dispute not only costs individuals their jobs and careers, but also their health and emotional well being, not to mention financial security. The stakes are extremely high in these causes.
The experienced and knowledgeable Los Angeles workplace retaliation lawyers at Kingsley & Kingsley have nearly 40 years of experience fighting for the rights of employees who have been discriminated, harassed or retaliated against. We are passionate about the pursuit of justice for our clients and work diligently to help them secure maximum compensation for their losses. Call us at 888-500-8469 for a free, comprehensive and confidential consultation.