Employer Retaliation: Answers to Frequently Asked Questions

When an employee complains to supervisors or federal agencies, like the Equal Opportunity Employment Commission (EEOC), about sexual harassment, discrimination, or other mistreatment, employers often get angry and fire or demote the worker. This kind of action – known as retaliation — is strictly and seriously illegal. Employers can be seriously punished for “retaliation against” employees who engage in “protected conduct,” like complaining about unfair practices. But the law regarding retaliation can get quite confusing. This blog post aims to answer some frequently asked questions and dispel some myths about the process.

What does it mean to “engage in protected conduct”?

A variety of state and federal laws prohibit employers from discriminating against employees on the basis of gender, age, sex, and several other metrics. Employees who complain about unfair benefits, pay, and leave practices — or who raise allegations of discrimination or harassment — are protected from retaliation.

What if you lose your discrimination or benefit case? Can your employer then retaliate?

Absolutely not. For instance, say you complain to the New York Department of Labor about an overtime dispute, and the DOL denies your claim. Despite the negative outcome of the case, your employer cannot enact any reprisals against you.

Do retaliation laws prevent complaining employees from getting fired or demoted ever?

No. They simply prevent employers from engaging in those activities because of the complaint. For instance, if you file a complaint about sexual harassment and then decide to play hookie from work for five days to party in Las Vegas and fail to tell your supervisor… you can be fired because your boss would have a legitimate and legal reason to terminate you.

My brother and I work at the same manufacturing plant. He made a complaint about racial discrimination. Am I protected from employer retaliation?

No. The Supreme Court is currently reviewing a similar case in which a man got fired shortly after his fiancée filed a claim with the EEOC for gender discrimination. The court has yet to rule on that case. If the man wins, then perhaps retaliation rights will expand to include spouses and others who have significant close relationships with the complainant.

What do you need to do to prove your claim?

First, you have to show that you had been engaging in protected conduct, as defined above. Second, you have to show that you suffered a tangible bad action – such as getting fired or getting demoted. Finally, you have to prove the “cause and effect” leading from the complaint to the adverse consequences.

How do I know whether I have a case against my employer for retaliation?

Call the law firm of Joseph & Kirschenbaum at (212) 688-5640, or schedule a free consultation through www.jhllp.com to learn more whether you do in fact have a case.