Workplace retaliation and wrongful termination

Retaliation. Revenge. Vendetta. Some would argue that it’s human nature. Be that as it may be, if an employee is fired from work in retaliation for exercising his/her workplace rights or for reporting a legal violation, there may be a case of wrongful termination at play.

What constitutes retaliation at the workplace?

The law defines retaliation as any employer action, which is “materially adverse”.

Materially adverse actions include things like:

• non-hire of a job applicant
• discharge
• demotion or transferring to a less desirable position
• denial of promotion
• denial of job benefits
• suspension
• threats or abuse (verbal or physical)
• negative, false evaluations or reports
• treating family members negatively

In short, materially adverse actions are things an employer might do (at or outside the workplace) to deter the employee from carrying out a protected activity, as defined below.

What activities are protected against retaliation?

The law defines certain “protected activities” for which an employee (or job applicant) cannot suffer any form of adverse action taken by the employer.

These protected activities are defined by the following laws, most of which are enforced by the Equal Employment Opportunity Commission. The applicable statutes are:

• Title VII of the Civil Rights Act of 1964
• Age Discrimination in Employment Act
• Americans with Disabilities Act
• Section 501 of the Rehabilitation Act
• Equal Pay Act
• Title II of the Genetic Information Nondiscrimination Act
• Family and Medical Leave Act

Protection of employee rights

The US Department of Labor set up the Occupational Safety and Health Administration (OSHA) to protect whistleblowing employees from retaliation because the employee has filed a complaint or exercised any rights provided to employees. Read more on whistleblowers.gov.

All retaliation complaints need to be filed at OSHA within the time limits set by the laws OSHA enforces.

The 3 general categories of protected activities (with examples)

Most protected activities will fall into one of these broad categories:

1. Reporting illegal activity – If an employee (or job applicant) in good faith and reason believes that the employer is committing illegal behavior, it should be reported internally or to the authorities. This is considered a protected activity, for which no materially adverse action can be taken against the employee.
   Common, real life examples of what type of illegal activities an employee might report are:
   1. Reporting sexual harassment
   2. Reporting some form of discrimination
   3. Reporting unsafe working conditions
   4. Complaining about the employer’s failure to pay for overtime, or denying legally required breaks
   5. Whistleblowing, which is an area all on it’s own
2. Exercising employee rights – Employee rights have been addressed at federal and state level, as well as by various regulatory bodies. This is a very broad area of employment law, and includes things such as limits on drug testing; right to minimum wage; taking unpaid leave for births; being able to return to work after military service; health and safety right, etc. When an employee wants to exercise a legal right which is not to the boss’s liking, a retaliatory wrongful termination might be the result.
   Here are some common examples of when an employer might retaliate against an employee who merely want to assert his/her rights:
   1. Requesting reasonable accommodations for a disability or religious practices
   2. Requesting a portion of tips earned
   3. Exercising sick leave rights, or taking time off to vote or serve on a jury
   4. Refusing to obey an order reasonably believed to be discriminatory
3. Participating in an official investigation – Employee participation in an investigation, hearing or lawsuit regarding the employer is a protected activity.
   For example, when a worker provides information to federal investigators on company policies, or is subpoenaed to testify against the company, fall under this category.

As you can see, the number of reasons an employee might be retaliated against is almost endless. Out of the total number of claims filed with the EEOC, retaliation charges hold the highest number and ratio. In fact, retaliation claims account for almost 45% of all claims submitted to the commission, steadily increasing throughout the years.

Is this a result of human nature? Are employers destined to pick on employees, who have done something aimed specifically at the employer, even though the action of the employee was just? Probably so, based on the statistics:

Source: https://www1.eeoc.gov/eeoc/statistics/enforcement/charges.cfm

Proving a retaliation claim

If a person decides to file a claim at the EEOC against an employer, the existence of the following 3 elements need to be present:

1. Protected activity had taken place (as defined by law, or opposition to some form of discrimination at the workplace)
2. Negative action taken by employer
3. Causal connection is present between the above, proving retaliation

Proving the third element, the relationship between the employee’s protected activity and consequent termination, is understandably difficult. Employers will always have a valid excuse for terminating an employee.

Both direct and circumstantial evidence may be used to make the connection. Direct evidence includes finding written or oral statements that prove the case, while circumstantial evidence relies on facts from which retaliation can be inferred indirectly.

The employee needs to present the evidence, it is not the employer’s burden to disprove the claim. Evidence needs to show that it is more likely than not that retaliation has occurred.

Remedies available for retaliation

If the court decides that retaliation had taken place, the following damages may be awarded:

• Reinstatement or front pay until the person finds a new job
• Back pay
• Out of pocket expenses incurred as a result of being wrongfully terminated
• Court and attorney fees
• Damages for pain and suffering
• Punitive damages against private employers

Many retaliation cases are settled by the parties before reaching the courtroom. Retaliation settlements vary in amount, depending on the severity of the issue and the probable outcome. Litigation is expensive for the company, so if it sees that the employee has a strong case, it may decide to settle.

These workplace retaliation settlements are not made public, unless the employer is an entity which is obliged to disclose it’s finances publicly.

Retaliation cases and settlements

Below, you will find a few example workplace retaliation lawsuits & settlements:

• Ann Wayt was awarded $1.75 million, after proving that her former employer, the Massilon hospital wrongfully terminated her and defamed her. She had worked for the hospital for 38 years as a registered nurse. She tried to unionize the other nurses, an act which the hospital was not happy about. The court found it to be retaliation, when the hospital fired her and sent a complaint to the state nursing board to revoke her license. (source)
• Shawna Capps was awarded $75,000, after proving that she, her sister and cousin were victims of retaliation. Her employer, Kids R Us, discriminated against her after she became pregnant by demoting her and transferring her to another facility, forcing her to quit. Her sister and cousin, who also worked at the company, complained about the discrimination. They were fired shortly afterwards. (source)
• Elma Garza was awarded $30,000, after proving she was fired after reporting that she was sexually harassed at work. The victim was the only woman working for a Texas oil field company, Garrison Contractors Inc. She was put out to lewd sexual comments when working in the field, and she was wrongfully discharged after complaining about it.

What to do next if you were the victim of retaliation at work?

Since retaliation is a very broad part of employment law, it is best to consult with an attorney as soon as possible. Please read our detailed guide on how to get started with the claim.

If you would like to find out more about all aspects of retaliation, we recommend the EEOC’s guidance on retaliation and related issues.