12 Examples of Workplace Retaliation…And 3 Tips on What You Can Do About It!

12 Examples of Workplace Retaliation…And 3 Tips on What You Can Do About It!

We’ve all worked in those organizations where something’s off. The secretive glances, the terse emails, the cold greetings at the water cooler all smell fishy.

Then one day you request time off for a religious holiday, or point out an overt error in the books. A few hours later, your boss shows up with a huge stack of papers, and dumps them on your desk.

“Shred them,” he snarls and huffs away.

You look around to your coworkers and their days are humming along as normal. You’ve been singled out exclusively for this menial task. What do you do? Shrug it off, do the work and move on?

Left unchecked, retaliation sets a wet blanket of fear over company culture. It gives criminality and injustice free reign in the workplace. People sense that when they speak out or request their due, claws immediately sink into their back. Transparency is replaced with gossip chains. Mistrust abounds.

But retaliation can be subtle. Oftentimes, an employee can’t even be sure if an incident really constitutes retaliation. And even with the finest employment lawyer on the case, it can be even trickier to prove.

Just what constitutes workplace retaliation? And how does one guard against it in the workplace? If you want answers to these questions, then read on. This article looks at the most common examples of retaliation in the workplace, plus a few guidelines for fighting against it.

The 3 Conditions for Illegal Retaliation

At its essence, workplace retaliation is revenge. It’s when the actions of one employee spurs another employee, generally a manager or boss, to lash back in either subtle or overt ways. Given the power imbalance, it’s common for retaliation to go unchecked.

Fortunately, in this day and age, equal employment opportunity (EEO) laws protect employees against many incidents of workplace retaliation. Workplace retaliation isn’t always illegal, however. An employee can only seek legal recourse when the retaliation is caused by an action protected under EEO law.

The purpose for the legal protection against retaliation is to preclude a workplace environment where certain rights are unprotected, and certain laws violated.

Let’s demonstrate what this means with an example. Say an employee receives suggestive text messages from her manager, and she files a harassment complaint against him. The next day, this manager berates her work ethic in front of colleagues, even though he’d just given her a flawless performance evaluation. This verbal abuse, demonstrably motivated by the harassment claim and not poor work performance, is an example of illegal retaliation, as refusing advances in the workplace is protected under EEO laws. When left unchecked, it creates an environment where harassment is the norm.

However, let’s say this same employee files a complaint to HR against a loafing employee who forces her to pick up the slack on all the projects. In retaliation, the loafing employee also verbally abuses her in front of colleagues. This retaliation isn’t illegal, as while calling out a loafing employee is perfectly reasonable, it’s not an action protected under EEO laws.

Here are some of the actions protected by EEO laws that commonly incur retaliation:

• Whistleblowing. An employee is legally protected against retaliation when he or she calls out glaring illegal work practices and reports them to authorities.
• Requesting disability or religious exemptions. An employee who requests time off to celebrate a religious holiday is legally protected against retaliation.
• Requesting salary disclosure in order to reveal discriminatory wages. An employee may sense she’s being denied raises that her coworkers have received, and request salary information on them. This action is legally protected.
• Refusing advances and reporting harassment. No one is expected to endure harassing behaviors, and calling out this behavior is an employee’s right.
• Refusing to follow orders that would result in discrimination. A human resources employee can ignore his manager’s instructions to not hire people based on their religion or skin color, for example.
• Requesting or taking a leave of absence under the Federal Leave Act.
  Filing for work compensation benefits, such as wages lost due to an injury.

In summary, the three criteria for illegal workplace retaliation are:

1. The initial action is protected under EEO law.
2. Retaliation occurs.
3. The retaliation fosters a work environment that discourages other employees from asserting their legal rights.

With these clarifications under our belt, let’s now look at some of the common manifestations of workplace retaliation.

12 Examples of Workplace Retaliation

As most of us know all too well, workplace retaliation is very real indeed. However, it can be subtle, and so difficult to recognize and even more difficult to prove. From the overt to the most subtle, here are twelve of the most common manifestations of workplace retaliation.

1. Job Termination

Say an employee files for workers compensation after receiving an injury on the job. Then he is fired. This is an overt example of retaliation.

2. Demotion

If an employee refuses the advances of her manager, and then is repeatedly assigned to projects below her skill level, she’s the recipient of retaliation.

3. Salary Reduction

If an employee reports harassment from a coworker, and at her next meeting she is denied a bonus or a raise, this may be an incident of retaliation.

4. Punitive Assignment

Every position entails its fair share of busywork, and sometimes this work comes in deluges. But when one individual is singled out for remedial work while other employees carry on as usual, it’s a sure sign of retaliation.

5. Changing Conditions

Forcing an employee to work weekends, denying an employee a regular work schedule, or moving an employee to a less desirable work environment all are common methods of retaliation.

6. Unmerited Discipline

If an employee were to request salary information on some of her peers, citing that her motivation is to uncover discriminatory wages, and then she is suspended without due cause, it’s a likely incident of retaliation.

7. Defamation

Another common scenario for retaliation is when a manager sends out an email that falsely and negatively reports a worker’s job performance.

8. Third Party Acts

Say an employee requests a leave of absence for maternity leave, and then the following week, her cousin who also works for the company is defamed in an email and demoted. This is a possible incident of retaliation. But as it may be difficult to prove the correlation between the two acts, it is a more subtle example of it.

9. Verbal Abuse

If a manager screams at an employee just after he reports the company’s illegal behaviors to the feds, it’s quite likely an incident of retaliation.

10. Increased Scrutiny

Say an employee is accustomed to completing her job duties with little to no supervision from her boss. Then she reports her boss for sexual harassment. In the ensuing weeks, all her work is inspected as it’s never been in the past. Unless her boss has a good explanation for this increased scrutiny (say, the worker’s performance had significantly declined), then it is an example of retaliation.

11. Exclusion

Say an employee takes on the role of whistleblower, and calls out several managers for concealing critical information. In retaliaion, she is no longer invited to Friday happy hours, where much business discussion takes place.

12. Avoidance From Coworkers

Maybe an employee refuses the advances of her manager, and tells him outright she’s not interested. As a result, he discontinues any contact with her whatsoever. This is an incident of retaliation, as the manager needs to continue to interact and engage with her as he would any employee.

And this summarizes twelve common examples of workplace retaliation. Even when subtle, it is possible to prosecute retaliation. Let’s now turn towards strategies for building a retaliation case.

3 Guidelines for Building a Retaliation Case

Retaliation is tricky. It generally comes from a person with more seniority, and so an employee may feel intimidated to report or challenge it. It can also be so subtle that the employee struggles to convince anyone that it’s real, and cannot present documentation to an employment attorney.

At the same time, retaliation cannot be brushed under the rug and endured. When accepted as a matter of course, workplace retaliation builds a company culture where people are ruled by fear and punishment.

Let’s cover a few guidelines for how to recognize and build a case that can prosecute an employee for retaliation.

1. A Short Window Between the Complaint and Retaliatory Incident

Retaliation is about cause and effect. It’s when one person acts in direct response to another person’s action. Generally, a retaliatory act that occurs immediately after the complaint or initial action is overt and easy to prove. A time lapse of several weeks or months, however, creates murkiness and weakens a claim of retaliation. Say, for example, an employee reports sexual harassment, and then three months later her boss fires her. The boss could well cite poor work performance over the previous three months that led to the firing, rather than the report of harassment.

2. Good Documentation

Documenting retaliation can be difficult, as the retaliatory employee will always cite another reason for his or her behavior. A winning retaliation case, then, is supported by documentation of both the initial complaint and the retaliatory conditions.

First of all, it’s necessary to prove that the employee took actions that were legally protected. Whether he or she filed for disability, refused advances, reported harassment, or did something else covered by EEO law, this action needs documentation. An email, for example, that reports harassment to HR, as well as documentation of the unwanted advances, serves as documentation.

Next, it’s necessary to prove that the retaliation occurred. Say the retaliation is a demotion. The employee then documents her former income and workload with pay stubs and emails, and then her subsequent working conditions with similar documentation.

3. Witnesses

Some forms of retaliation by their nature are not documented, such as verbal abuse. In these instances, witnesses serve to build a case. Soliciting testimony of witnesses right after the incident occurred accurately records the veracity of the retaliation.