Workplace retaliation can no longer be ignored. There are laws protecting career seekers and employees from harassment and discrimination.
Are you aware these laws also protect you from being retaliated against?
I'm one of many employees that have experienced retaliation in the workplace and its companion called harassment.
Unfortunately, employees are subjected to discrimination, harassment and bullying everyday at work. This environment makes it seem as if the supervisor or manager is ALL POWERFUL in the hostile work environment they have created. Guess what? NOT...for employees that learn their Basic Employee Rights! One of the most powerful weapons employees have against negative employers is a RETALIATION LAWSUIT!
Why? Retaliation claims are easier to prove. But, what is work retaliation? When our employers punishes us for engaging in "legally protected activity" it becomes retaliation on the job. There can be different kinds of retaliation in the workplace. Some labor and employment protections make any sort of retaliation illegal, others prohibit against unjust firing or wrongful termination.
Retaliation claims have been increasing dramatically. According to the (EEOC) Equal Employment Opportunity Commission (EEOC) charges filed from 2000 thru 2009 jumped 55 percent!! This made up 36 percent of all discrimination claims filed with the commission (the same percentage of racial discrimination claims filed that year). Some factors for the increase include the economic downturn, favorable laws that make proving retaliation easier. However, my favorite reason is arrogant or ignorant employers turning poorly trained supervisors and managers loose in the workplace.
WORKPLACE RETALIATION HARASSMENT
Employer retaliation can involve any adverse or negative decisions our bosses make against us. These may include;
- mysterious shift change
- change in job duties
- suddenly negative unjustified employee performance reviews
- reduced salary
- assigning blame for others failed job assignments
- denial of promotion opportunity
- exclusion from workplace social activities
These are some of the more obvious signs of retaliation in the workplace. However, it may be insidious or hiding in the shadows. For example, an employer may reassign an employee from a group of employees to another shift. Since there is a "legitimate" business reason for the shift change no problem, right?
Hmmmm....let's take a closer look at the scenario. Two years before shift reassignment the female employee chosen had filed and won a sexual harassment
claim against a manager that everyone in the company loved.
The manager had a history of harassment yet no discipline was ever taken. Other female employees were intimidated into remaining silent for fear of retaliation.
A result of the lawsuit was the manager's termination. So management bidded time for about 8 months before unleashing its job retaliation. Then what I call "workplace conspiracy"
kicked in. The female employee's immediate supervisor in collusion with a "good" friend in human resources created a need for a shift change from first to a split of third and first. The actual reassigned work hours being 4am-12pm.
For a single parent with three young children this shift reassignment creates a serious hardship. Also the shift change involved many different job functions thus changing her job title. This coincidentally meant she would now be making a lower salary.
Workplace retaliation can be subtle,insidious and hide in many different disguises. Let's take a look at what is meant by protected activity. Workplace retaliation can very blatant, insidious and subtle. Workplace retaliation is connected to a "Protected Activity" the employee engages in.
So what does "protected Activity" mean? In Protected activity there are two different elements:
Participation and Opposition
Here are some examples of Participation:
- helping co-workers with discrimination claims
- talking to a (EEO) Equal Employment Opportunity officer
- being a likely witness (giving testimony)
- talking about filing a complaint or filing a complaint internally
- talking about filing a complaint or filing a complaint with the (EEOC) Equal Employment Opportunity Commission
- actively involved in an internal or external investigation
- Talking to or hiring an attorney to file a complaint
Employees are also protect from retaliation in their personal conduct on the job. For example, an employee taking FMLA to care for a spouse or child can't be retaliated against.
If an employee informs his boss he is having a problem with depression and needs to enter the employers (EAP) employee assistance program he is protected from retaliation. When we inform employers of our concerns about possible violations dealing with safety and health, we are protected. When the employer investigates these issues and no violation has occurred,the employee(s) voicing the concerns acting in good faith are protected from retaliation.
Here are some examples of Opposition:
- peace protests (picketing)
- inquiring if gender or other discrimination is the reason for an employment action
- declining to perform an assigned task believed to be discrimination
- requesting a reasonable accommodation
- expressing intent to file a complaint
The one issue with opposition is that is has to be "reasonable". I know, what is deemed "reasonable". Well the following and hopefully some common sense, which isn't so common anymore, will explain better. These are some *NON PROTECTED* actions not considered "reasonable" opposition by the employee.
- violating established employer policy
- willfully undermining company business activity
- refusing to comply with non discriminatory commands
- abusive or violent protests
There is a significant difference between "participation" and "opposition"
Employees using their rights in opposition must act in "good faith" or have honest intent if they believe the boss has violated their employee rights. However, employees in participation usually do not have to share a belief of wrongdoing on the part of the employer. For example, a co-worker that cooperates is protected from workplace retaliation when assisting my investigation of the boss violating my (ADA) Americans with Disabilities Act rights. The co-worker does not need to believe or know my rights have been violated.
Another type of workplace retaliation protection involves what's called "Whistleblower Laws". This means it's illegal for employers to punish you when you expose a violation of those laws. Here are some examples;
- retaliation for union involvement
- retaliation by a union
- retaliation under workers compensation law
- retaliation involving unemployment law
- retaliation dealing with public policy or common law
BIG RETALIATION CHARGE TIP!!
Shhhhhhhhh.....don't tell anyone, but retaliation charges are easier to prove than most other workplace violations. Why? Again, because it is tied to a "protected activity". For example, you file a gender discrimination complaint against your boss and lose. However, you still could win a complaint of retaliation for filing the gender discrimination charge.
Here's the legal reason why. Courts have specifically said that an employee can prevail on a retaliation claim by establishing that the employer retaliated against the employee for opposing allegedly discriminatory practices even if the practices were not, in fact, discriminatory. This judgment comes from the case Sias v. City Demonstration Agency, 588 F2d 692, 692 (9th Circuit 1978).
If you believe retaliation has occurred, talk to your manager or the appropriate human resource person. You have the right to ask exact questions about adverse actions taken against you. If my employer can't or won't give me a reasonable answer, I'd say this action didn't happen until I filed an (ADA) Americans with Disabilities Act complaint.
I've yet to find an employer who'll admit discrimination and harassment. So my next step is to find an attorney specializing in employment law to assist in filing my retaliation complaint with the EEOC. I would use the same attorney that helped me file my original ADA complaint. Here's what employees need to show a link between the complaint and the bosses retaliation.
- document the retaliatory action(s)
- keep a record of your employment experience prior to filing the complaint
When the employer claims my job evaluation "crashed and burned" a month after I filed my race discrimination complaint, I'm going pull out every evaluation, interoffice memo, email, employee awards or commendations from other departments, etc. Everything proving my job evaluations were excellent or satisfactory BEFORE I filed the complaint.
My professional experience and research shows many employers still don't get when it comes to retaliation at work. Here's another BIG TIP for every job seeker and employee, see if the employer is doing any of the following;
- conducting retaliation and other employee rights training for managers and staff
- providing detailed explanation of the retaliation complaint process
- good faith communication with "participants" and "opposers" involved in protected activity
- clearly written retaliation policies and procedures
- maintaining accurate investigative records of employees being disciplined, complaining of retaliation or involved in protected activity.
If your employer or potential employer is not concerned about retaliation in the workplace, it becomes even more important for career seekers and employees to educate themselves. In an environment of outsourcing, illegal immigration, corporate corruption and unstable economy, more employers are using fear and intimidation as normal business activity.
Again, the bottomline in recognizing retaliation on the job asks the question "Am I being punished for filing a complaint concerning discrimination, harassment, health or safety?" The majority of retaliation lawsuits involve some type of discrimination. Therefore, learn all you can about workplace discrimination and proving workplace discrimination.
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