Retaliation

What is retaliation?

Retaliation is the unlawful punishment of an employee for exercising their rights or reporting harmful or illegal practices in their organization. Some instances of workplace retaliation could include, but are not limited to:

• Increased scrutiny
• Reprimands or unwarranted poor performance reviews
• Attacks on the employee’s reputation
• Verbal or physical abuse
• Threats directed at the employee’s family members
• Reporting (or threatening to report) an employee’s immigration status to authorities
• Demotion
• Termination.

Learn more about retaliation, how it’s defined and examples of it occurring, so you can spot it in your workplace.

What is the difference between retribution and retaliation?

Both retaliation and retribution involve punishing someone, but the intentions behind the punishment differ. While retaliation is motivated by personal reasons, including revenge, retribution stems from a desire to achieve justice.

For example, a manager firing an employee for reporting sexual harassment to protect their reputation is retaliation. However, the executive team’s decision to terminate the manager for sexually harassing the employee would be retribution.

Is retaliation always illegal?

Retaliation is always illegal, but it is sometimes confused with reasonable consequences of certain actions.

Retaliation is legally recognized when employers punish employees for actions that are protected by Equal Employment Opportunity Commission (EEOC) laws such as:

• Title VII of the Civil Rights Act of 1964
• Equal Pay Act of 1963 (EPA)
• Age Discrimination in Employment Act of 1967 (ADEA)
• Titles I and V of the Americans with Disabilities Act of 1990 (ADA)
• Civil Rights Act of 1991
• Sections 501 and 505 of the Rehabilitation Act of 1973
• Genetic Information Nondiscrimination Act of 2008 (GINA)

Here are some examples of when employers  cannot  discipline employees, as these are legally protected actions:

• Refusing to follow orders that would result in discrimination
• Communicating with management about employment discrimination, including harassment
• Resisting sexual advances or intervening to protect others
• Answering questions during an employer investigation of alleged harassment
• Requesting accommodation for a disability or religious practice
• Asking managers or colleagues about salary information to uncover potentially discriminatory wages.

Workplace retaliation examples

Spotting workplace retaliation can be difficult—even when you have some idea of what actions would constitute retaliation. To get a better understanding of what makes a strong retaliation case, read our comprehensive blog post.

Can an employer fire an employee as retaliation?

Yes, an employer can fire an employee as retaliation. But whether that termination is legal or illegal must be evaluated. As illustrated above, it would only be wrongful termination if the employee’s complaint was protected by EEOC laws.

Can an employer fire a witness in a retaliation case?

According to the EEOC, employers can't punish an employee for serving as a witness in an EEOC complaint.

What is the penalty for retaliation?

If an employer is found guilty of retaliation, they must provide restitution to the employee, which may include:

• Back pay for the compensation the defendant missed because of the retaliation, such as lost wages, lost fringe benefits, and retirement contributions.
• Front pay for future lost earnings such as promotions and other career damage
• Compensatory damages the retaliation caused, such as pain and suffering, job search costs, and harm to reputation.