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Examples of Workplace Retaliation

By Thomas McKinney

There are laws at both the state and federal level intended to protect employees from experiencing discrimination or harassment in the workplace. These laws also aim to shield employees from retaliatory actions that may be taken by an employer should an employee try to exercise their rights under such laws. Retaliation can come in a variety of forms. Being familiar with at least some of the most common forms of retaliation can help you recognize it should it ever happen to you. Recognition is the first step to protect yourself and working to enforce your legal rights.

Examples of Workplace Retaliation

Workplace retaliation is said to occur when an employer takes adverse action against an employee because the employee exercised their rights under federal and/or state employment laws. Commonly, the rights were exercised under anti-discrimination or anti-harassment in the workplace protections. The primary federal law for such protections is Title VII of the Civil Rights Act of 1964. If an employee files a complaint, assists with an investigation, or otherwise asserts an employment right under such protections and they suffer adverse employment consequences as a result, this would likely be deemed workplace retaliation.

A retaliatory action made by an employer against an employee can take many forms. Some forms, however, are more common than others. Common kinds of retaliation include:

  • Termination
  • Demotion
  • Negative performance reviews
  • Unfavorable working hours or schedule
  • Salary reductions
  • Benefits reductions
  • Denial of a promotion
  • Transfer to a less favorable position.

Again, these are just some of the more common forms of retaliation that occur. The U.S. Supreme Court has said that any negative employment action made against an employee who engaged in protected conduct can constitute retaliation if the employer’s action would be sufficient to discourage a reasonable employee from making a complaint under similar circumstances. You see, workplace retaliation runs afoul of the law because we want employees to feel free to exercise their legally protected employment rights. We want this to be able to happen without any employee fearing retribution and fallout from their employer. If an employer is taking adverse action against employees exercising such rights, it is likely that a court will intervene.

So, should an employer take adverse action against an employee who has engaged in a protected action, and the employer took said adverse action due to the employee taking such protected action, it may very well constitute workplace retaliation. The difficulty in successfully asserting a workplace retaliation claim, however, often comes with being able to show that the employer took the adverse action because of the employee’s protected actions. This is the causation element of a workplace retaliation claim and it can be a real sticking point for many claimants. Oftentimes, a claimant will need to rely on circumstantial evidence to support the causation element as direct evidence will be scarce, if it exists at all.

Employment Law Attorneys

If you think you have suffered workplace retaliation, do not hesitate to reach out to Castronovo & McKinney for assistance. Contact us today.

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.