Workplace Retaliation

By Susan Buckner, J.D. | Legally reviewed by Aviana Cooper, Esq. | Last reviewed October 10, 2023

Small businesses can seem like families. When there is a disagreement or dispute, there is a temptation to handle it within the company rather than turn to outsiders for help. Like with families, when someone seeks outside help others may feel angry or betrayed. Small business owners, just like big companies, may want to retaliate against a whistleblower or complainant.

However, workplace retaliation is prohibited by federal law, as many employers have learned the hard way. When employees file complaints about discrimination or harassment in the workplace, employers must take the complaints seriously. They must also avoid doing anything that appears to attack the person who filed the complaint.

Retaliation Defined

According to the U.S. Equal Employment Opportunity Commission (EEOC), the agency that handles employee reports of harassment and discrimination, there are three elements to a workplace retaliation claim:

Protected activity: In this case, the protected activity is filing a complaint about harassment, discrimination, or a hostile work environment that management has not fixed. State laws make any action against whistleblowers illegal retaliation.
Adverse action: Adverse action can be directly job-related, such as firing, demotion, reassignment, or negative job evaluations. They can also be "materially adverse" acts to the employee, such as unpleasant working conditions, giving them too much or too little work, or giving their assignments to other workers.
Causation: This is when there's proof the employer took the adverse action because the employee engaged in the protected activity. Proof can be direct or circumstantial.

These definitions apply to anyone who participates in the complaint and investigation as well as the initial filer. For instance, employees interviewed by the EEOC about a harassment complaint cannot be retaliated against. Threats of possible retaliation for complying with an investigation ("I don't want to hear about anyone talking to the EEOC investigators!") are also not permitted.

Protected Activities and Adverse Actions

Although protected activity is easy to define, adverse action is not. Wrongful termination is itself unlawful. Even in at-will states, employers can get in trouble for firing employees if the termination is due to:

Disability or a request for reasonable accommodations for a physical or mental disability (Americans With Disabilities Act)
Request for unpaid leave to care for a family member or recover from a serious medical condition (Family and Medical Leave Act)
Age if over 40 (Age Discrimination Act)
Race, religion, gender, national origin, sexual preference, or orientation (Title VII of the Civil Rights Act, other state laws)

Whistleblower statutes protect any employee or former employee who files a claim of harassment or discrimination. Anti-retaliation policies prevent employers from disregarding claims they deem false or, after the fact, to punish workers from stepping out of line.

Types of Adverse Actions

According to the EEOC, retaliation is the biggest cause of complaints. It is a major factor in discrimination claims among federal employees, which likely holds for businesses in general. The EEOC has found, in many cases, that the original claim by a worker failed to uncover any grounds for the complaint, but the retaliation claim did. In other words, the employee had made an unfounded claim, but the retaliation led to actual discrimination.

Intentional retaliation comes after an investigation and is when an employer deliberately or purposely changes the employee's work status, etc. for the worse after a complaint. Being the subject of an EEOC investigation can be humiliating for large and small businesses. If the claim is unfounded, it's natural to be angry. However, owners and managers must resist the temptation to strike back at employees who filed a complaint.

Unintentional retaliation occurs when an employer tries to be helpful and instead makes matters worse. For instance, an employee complains about sexual harassment from a supervisor. The employer decides it would be best to move the employee to a new location during the investigation. By focusing on the complainant rather than the alleged wrongdoer, the employer creates the appearance of retaliation.

Retaliatory actions can be direct actions against the employee or participant. They can include:

Firing, even with other cause, if not thoroughly documented
Demotion or reassignment, especially if the demotion comes with a pay cut
Cutting hours or job responsibilities
Negative performance reviews

Courts have also ruled that materially adverse actions are also retaliatory. These can be things like:

Moving a worksite to a less desirable location
Giving the employee too much or too little work or unrealistic deadlines
Micromanaging, like stopping by their desk or worksite to "see how they're doing"

These materially adverse actions are retaliatory if the employee believes they are being carried out to force them to quit. Notice that some of them fall under the unintentional retaliation category. You may believe that your worker would be happier in a different location away from where the harassment took place, but that is not always how the employee sees it.

Avoiding Retaliation Claims

The easiest way to avoid initial harassment and subsequent retaliation claims is by having a good employment policy. All new workers should receive it during onboarding as part of their employee handbook. Even small businesses should have a handbook, even if they don't have a human resources department. You can find guidelines for writing employee handbooks online at FindLaw or by other HR professionals.

One section of your handbook should explain your harassment policy and how to report claims. For instance, you can provide the contact information if you want an employee to report directly to your HR department. If you have a form you want workers to use, it should be readily available in the break room or other common areas.

Another important section should explain workplace discipline. Your employees must know what will trigger a poor performance review and what steps disciplinary action goes through. Employees should always be able to access their personnel files.

A clear policy manual is good for both you and your employee morale. Your workers cope with situations better knowing what is acceptable and what is not.

When You Receive a Complaint

If you receive a complaint, whether an initial complaint of harassment or a claim of retaliation, your best course is to have a policy against retaliation. Your policy should cite state laws and applicable federal statutes, while also describing your policy for reporting and investigating complaints. In addition:

Take all complaints seriously: This does not mean you must believe every complaint is true, but you must investigate to find the truth of the matter.

Keep all complaints confidential: Let employees know that any complaints made will be private. Only investigators should have access to information. In a small company, you may want to have outside help with your investigation.

Keep records of all complaints: Keep documents on your full investigation, even if it is unfounded. If there are future legal proceedings, you will need a paper trail of what you did and who you spoke with.