Retaliation and Wrongful Termination

Because most employment is at-will, an employer can legally fire a worker for many different reasons. But taking adverse action against a worker engaged in protected activities can make an employer liable for unlawful retaliation and wrongful termination.

The U.S. Equal Employment Opportunity Commission (EEOC) investigates workplace discrimination charges. Retaliation claims are among the leading charges handled by the federal agency. In 2022, the accusations constituted 51.6% of all EEOC charges.

Other government agencies also investigate retaliation. One example is the U.S. Occupational Safety and Health Administration (OSHA). They investigate whistleblower retaliation claims under more than 20 federal laws.

See FindLaw's Wrongful Termination section for more articles.

Protected Activities

An employer may not terminate or otherwise take adverse action against workers who engage in activities protected by law. This ensures that you can engage in certain activities without fear of retaliation or discrimination. Protected activity is generally spelled out in state and federal laws. But courts also play a role in defining which activities are legally protected from employer reprisals.

In general, there are three categories of protected activities:

1. Reporting unlawful or potentially unlawful behavior (whistleblowing)
2. Asserting your legal rights as an employee
3. Participating in an investigation

Specific examples of protected activities include:

• Requesting and taking time off under the Family and Medical Leave Act (FMLA)
• Filing a workers' compensation claim
• Reporting an employer's illegal activity
• Filing a claim for a hostile work environment
• Reporting safety violations
• Filing a Title VII claim
• Filing a claim for sexual harassment
• Contacting OSHA to report unsafe working conditions
• Participating in an official investigation into the employer's practices
• Testifying in a wrongful termination case
• Reporting sexual harassment or racial discrimination to your company's human resources department
• Asking for an accommodation under the Americans with Disabilities Act (ADA)

Laws Forbidding Retaliation

Employment laws often have anti-retaliation provisions. Some of the most commonly invoked protections are found in:

• Title VII of the Civil Rights Act of 1964
• Age Discrimination in Employment Act
• Americans with Disabilities Act
• Equal Pay Act
• Family and Medical Leave Act (FMLA)

Similar state laws also include anti-retaliation provisions.

Adverse Action

Retaliation or adverse action can take many forms. It can include:

• Increased supervision or monitoring
• New performance issues
• Higher standards or expectations
• Terminating your employment
• Demotion
• Denial of promotion or benefits
• Warnings or poor evaluations
• Threats

Employers can also subject job applicants to adverse employment actions. For applicants, retaliation can look like a non-hire.

But there are limits to what looks like retaliation. Retaliation generally doesn't include petty slights. According to the EEOC, it also doesn't include small annoyances or minor punishments.

Legitimate Employer Discipline

Protected activity doesn't insulate you against legitimate employer discipline. The EEOC notes that employers “can act based on non-retaliatory and non-discriminatory reasons."

Proving Retaliation and Wrongful Termination

It's important to consider a variety of things in proving a claim of retaliation and wrongful termination. For example, if you're still employed, you should file a complaint through your human resources department or any other group or person within your company handling such concerns. This will put your company on notice.

It's equally important to know that a successful claim is usually characterized by proving that you:

1. Witnessed or were a victim of some form of harassment or discrimination;
2. Participated in a protected activity following your employer's illegal behavior; and
3. Were punished in some way because you participated in the protected activity

It's often difficult to demonstrate a connection between an employee's protected activity and their termination. This connection can be established by both direct and circumstantial evidence.

Direct evidence includes written or verbal statements that an employee was fired for engaging in a protected activity. Circumstantial evidence is based on an inference that an employee's firing or punishment was a result of his or her participation in a protected activity.

Performance Reviews

If you're going to make retaliation claim, make sure you have an open and honest conversation with your attorney about any performance reviews you received before the retaliatory incident or termination. Employers often counter claims of retaliation by attempting to demonstrate valid reasons for an employee's termination or punishment. Or they may say the employee was "at will" and could be fired for any reason.

Performance reviews are often some of the most useful pieces of evidence in a retaliation claim. If you have a record of excellent performance and your employer is alleging otherwise in their response to your claim, your positive reviews could cast doubt on the notion that you were fired for underperformance.

In another example, consider an employee up for a promotion but suddenly taken out of the running shortly after they report safety violations. This employee may have circumstantial evidence of retaliation if they can show that there was no other reason for them to be punished.

Gathering such evidence can be helpful in countering the defenses that your employer might try to use.

Learn More About Retaliation and Wrongful Termination: Call a Lawyer

An attorney can help you understand how the law applies to your circumstances. An employment law attorney can perform a case evaluation to determine if you have a valid legal claim. If so, you may be entitled to back pay, reinstatement, and even an award of punitive damages. Contact an employment law attorney today to learn how they can help you achieve a fair outcome.