Common Reasons for Workplace Retaliation

Retaliation is a serious concern for many employees, and allegations of retaliation are equally concerning for employers. It is also unfortunately common. According to the Equal Employment Opportunity Commission (EEOC), retaliation is the most frequently alleged basis of discrimination in the federal sector. While no two incidents of retaliation or alleged retaliation are the same, it is particularly common in certain scenarios, as our Richmond employment lawyers explain below.   

The Basics of Anti-Retaliation Law

Generally, retaliation occurs when an employer takes an adverse employment action against an employee due to the employee engaging in a legally protected activity (more on legally protected activities below). “Adverse employment action” is a broad category and can include, for example, termination, demotion, suspension, reduction in pay or benefits, and reassignment to less desirable duties. As the U.S. Supreme Court has explained, an adverse employment action must be more than “normally petty slights, minor annoyances, and simple lack of good manners.” Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).

Both state and federal law protect employees from retaliation. Under Virginia Code § 40.1-27.3, it is unlawful for employers to take adverse actions against an employee because the employee: 

1. Reports a violation of a federal or state law or regulation to a supervisor or government entity 
2. Is requested by a government entity or law enforcement to participate in an investigation
3. Refuses to engage in a criminal act that would subject the employee to criminal liability
4. Refuses an employer’s order to do anything that violates a federal or state law or regulation
5. Provides information to or testifies in an official proceeding into any alleged violation by the employer of any federal or state law or regulation

At the federal level, almost all laws designed to protect employee rights contain anti-retaliation provisions. Those include the Civil Rights Act, Fair Labor Standards Act, the Occupational Safety and Health Act, and the False Claims Act, among many others. If you’re unsure of the scope of any state or federal anti-retaliation law, you should consider speaking to a Richmond employment lawyer.  

Protected Activities for Which Retaliation Is Illegal 

As we mentioned above, retaliation is illegal when it is due to an employee engaging in a “protected activity.” But what exactly counts as a protected activity? Below are some of the most common protected activities for which employees allege retaliation. 

Whistleblowing 

In the context of employment law, a whistleblower is an employee who exposes fraud, waste, abuse, or any other unlawful activity to the appropriate authority. As such, whistleblowers often face severe professional and personal consequences for their activities. A variety of federal laws prohibit retaliation against whistleblowers, including the False Claims Act, the Securities Exchange Act, the Dodd-Frank Act, and the Whistleblower Protection Act (for federal employees). Retaliation (or alleged retaliation) against whistleblowers is so common that many federal agencies have divisions solely dedicated to investigating whistleblower claims and related allegations of retaliation against whistleblowers. 

Opposing Unlawful Discrimination 

One of the most common causes of alleged retaliation is opposing employment discrimination. Both federal and state law prohibit discrimination based on race, color, national origin, age, religion, disability, genetic information, sex, sexual orientation, and gender identity. These laws also prohibit retaliation against individuals who oppose the types of discrimination they address. Opposing discrimination could include, for example: 

• Complaining about alleged discrimination against oneself or others
• Refusing to obey an order believed to be discriminatory 
• Filing a complaint using internal policies and procedures 
• Filing a complaint with the EEOC

If you think you have been retaliated against for opposing discrimination or an employee is alleging retaliation, please speak to a Richmond employment lawyer. 

Requesting a Reasonable Accommodation 

The Americans With Disabilities Act (ADA) prohibits discrimination against individuals with disabilities and obligates employers to provide reasonable accommodations for disabled employees unless doing so would cause an undue hardship. But “undue burden” does not mean “no burden.” In some cases, employers may choose to terminate or demote a disabled employee rather than providing the reasonable accommodation, which likely would be considered unlawful retaliation under the ADA. 

Taking Leave Under the Family and Medical Leave Act 

The Family and Medical Leave Act (FMLA) is a federal law that requires employers to provide their employees up to 12 weeks of unpaid leave to attend to a serious personal medical condition or care for a close relative with a serious medical condition. FMLA-related retaliation could include: 

• Refusing to authorize FMLA leave
• Discouraging an employee from using FMLA leave 
• Using an employee’s request for FMLA leave as a negative factor in an employment evaluation

Reporting Unsafe Working Conditions 

The Occupational Safety and Health (OSH) Act and the Occupational Safety and Health Administration (OSHA), the agency that enforces it, protect workplace safety by promulgating and enforcing a multitude of workplace safety regulations. Under the OSH Act, workers have a right to report injuries, safety issues, and noncompliance with regulations, as well as the right to be free from being fired, demoted, or disciplined for exercising that right. While OSHA allows workers to file complaints anonymously, non-anonymous complaints generally are more likely to result in enforcement actions, which puts such complainants at risk of retaliation. 

Participating in an Investigation 

When an employee files a meritorious complaint with a government agency — such as the EEOC or OSHA — the agency often will institute an investigation of the employer. Many employers also conduct their own internal investigations when they receive complaints of misconduct. Both types of investigations often require witness interviews, which can lead to tension and mistrust among employees. While both federal and state law prohibit retaliation against employees who participate in investigations, those prohibitions do not mean that such retaliation does not happen. 

Get Answers From a Richmond Employment Lawyer 

Retaliation can have serious professional consequences for employees, and allegations of retaliation can seriously damage an employer’s reputation. As such, if you are dealing with retaliation or an allegation of retaliation, you should speak to an experienced attorney. For more information, please contact a Richmond employment lawyer at Pierce / Jewett by calling 804-502-2320 or using our online contact form.