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Home / VA Business Law Bulletin / Unlawful retaliation in the workplace

Unlawful retaliation in the workplace

Anti-retaliation laws safeguard basic rights afforded to workers. They ensure that workers can complain in good faith about violations of their rights to the government or their employers without fear that they will be disciplined or fired.

State law may prohibit employers from punishing employees who complain of or report violations of federal, state, or local laws, rules, or regulations; labor laws; wage and hour laws; or employer actions that pose a substantial and specific danger to the public health or safety or are a fraud against the government.

There are federal laws that prohibit employers from punishing job applicants or employees who assert their right to be free from employment discrimination or harassment.

When an employee asserts his or her rights under the law, he or she is engaging in a protected activity. It is unlawful to retaliate against a job applicant or employee for doing so. Courts often interpret broadly the scope of activity that is protected by law.

Examples of protected activities include:

  • filing or being a witness in a discrimination charge, complaint, investigation, or lawsuit;
  • communicating with a supervisor or manager about employment discrimination, including harassment;
  • answering questions during an employer’s investigation of alleged harassment;
  • refusing to follow orders that would result in discrimination;
  • resisting sexual advances, or intervening to protect others;
  • requesting an accommodation for a disability or religious practice; and
  • asking managers or co-workers about salary information to uncover potentially discriminatory wages.

An employee is protected from retaliation when he or she participates in a complaint process. Other acts to oppose discrimination are protected if the employee acted on a reasonable belief that something in the workplace may violate anti-discrimination laws, even if she or she did not use legal terminology to describe it.

Engaging in a protected activity does not shield an employee from all discipline or discharge. Employers may still discipline or fire a worker who engaged in protected activity so long as they do so for legitimate, non-discriminatory and non-retaliatory reasons.

Like many other legal issues, determining whether there has been unlawful retaliation depends on facts, context, and motivation. Stated simply, any employer action that was designed to or had the effect of discouraging or penalizing an employee who complains will be considered unlawful retaliation.

Acts of retaliation can include termination of employment, reduction of work hours, reassignment to a less desirable work location, and many other adverse employment actions. It can even include actions taken after an employee who engaged in protected activity left employment (e.g., a bad employment reference by a former employer to punish a former employee for making a protected complaint).

An employer does not have to be a legal expert to avoid unlawful retaliation; however, he or she should be aware of the basic concepts discussed above. Understanding that the law prohibits retaliation, knowing what types of activities are protected, and recognizing actions that could be retaliatory will go a long way in helping the employer avoid legal consequences.

Employers should avoid reacting emotionally or rashly after an employee makes a complaint or otherwise raises concerns about alleged unlawful activity. Employers should also keep contemporaneous records that carefully document any steps taken thereafter and/or any relevant interactions with that employee.