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What's the Definition of Workplace Retaliation?

document reading "retaliation" on a desk with a pen and book

Know your rights - and what to do if your employer violates them

One of the biggest challenges for employees trying to protect their rights is fear of retaliation. That fear is not unfounded: according to the U.S. Equal Employment Opportunity Commission (EEOC), retaliation is far and away the most common discrimination charge filed at the federal level. Indeed, since 2018, retaliation charges have made up the majority of discrimination cases filed with the EEOC each year.

As such, one of the most important things you can know as an employee is the definition of unlawful retaliation. If your employer is violating your rights, you have legal recourse — but you need to take action to pursue that recourse.

Breaking down the two elements of a retaliation claim

While "retaliate" is a commonly used word in many contexts, in the world of employment law, it's a legal term with a specific legal definition. There are two key elements of illegal retaliation: a legally protected activity, and an adverse employment action in response to that legally protected activity.

Adverse employment action

An adverse employment action is, essentially, anything that negatively impacts you as an employee. Firing (retaliatory termination) is the most obvious and extreme example, but adverse employment actions can take many forms, including but not limited to:

  • Reducing your pay or benefits.
  • Denying you a promotion or raise.
  • Transferring you to a less desirable or prestigious assignment.
  • Changing your work hours to a less desirable shift, such as intentionally scheduling you for a shift that conflicts with family responsibilities.
  • Giving you an unjustified negative performance evaluation.

Legally protected activity

A legally protected activity is any activity that is protected from retaliation under federal or state law. Under various federal employment laws, protected activities include but are not limited to:

  • Reporting unlawful discrimination (e.g., religious discrimination, sex discrimination, disability discrimination) or harassment (e.g., sexual harassment) in good faith. Reporting "in good faith" simply means you made a report that you believed to be true, even if an investigation ultimately found it was unsubstantiated.
  • Talking about salary or benefits with coworkers (as long as you are a non-management employee). Note that if your employer has a policy (formal or informal) saying you can't discuss your wages with your coworkers, that policy is most likely illegal.
  • Taking legally protected leave under the Family & Medical Leave Act (FMLA).
  • Requesting reasonable accommodations under the Americans with Disabilities Act (ADA).
  • Complaining about unsafe working conditions or filing a report with the Occupational Safety and Health Administration (OSHA) in good faith.
  • Cooperating with an EEOC investigation.

West Virginia state law provides additional protection against retaliation. For instance, it's illegal in West Virginia to retaliate against an injured worker who files a workers' compensation claim. Some laws protect employees in specific professions; for example, under the West Virginia Patient Safety Act, healthcare workers are protected against retaliation for raising good-faith concerns about patient safety or care.

An attorney can help prove retaliation in the workplace

It's not necessarily enough to show that you engaged in a protected activity and had an adverse employment action. The point of a retaliation claim is that the employer took an adverse action because of the protected activity.

Your employer will likely argue that there was an unrelated reason for the adverse action; for instance, if you were fired after reporting sexual harassment, the employer may claim that you were fired because of poor job performance unrelated to the sexual harassment complaint.

That's why it's incredibly important to produce evidence (such as positive performance reviews or positive feedback from your manager) that can help show your employer's stated justification is pretextual; that is, something they made up to justify an act that was actually for an illegal reason.

That's why it's so important to work with an employment law attorney who has experience navigating retaliation claims. We know how to investigate, get to the bottom of what happened to you, and build a case to protect your rights and pursue full recourse under the law. If you believe you've been retaliated against at work in West Virginia, contact Klie Law Offices for a free, confidential consultation.

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