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Employee retaliation may be insidious! Part 1

According to the (EEOC) Equal Employment Opportunity Commission, retaliation claims have increased approximately 100% from 1992-2006! Retaliation claims now comprise 30% of the total charges filed. These claims are now pushing race discrimination for the top spot.

What is workplace retaliation?


If your boss punishes you for being involved in legally protected activity it becomes retaliation. I thank GOD this blatant form of harassment is illegal. I have had first hand experience with being retaliated against by my employer. Retaliation can take on many disguises, such as;

  • unfair or inaccurate job evaluations
  • inappropriate discipline
  • unjustified shift change
  • demotion
  • reduced salary
  • job reclassification
  • bullying (intimidation)
  • termination

You may not believe this but it is absolutely true. I have experienced every one of the aforementioned adverse actions from my employer! Those who know my story marvel at the fact I’m still employed. I give first credit to GOD Almighty for giving me the wisdom to Learn Basic Employee Rights! That is why I’m so passionate about raising awareness and educating others to do likewise.

Workplace retaliation can very insidious and subtle. There are three basic areas involving retaliation, they are…

  • Protected activity
  • Adverse employment action
  • Casual connection
#1

Protected Activity

In Protected activity there are two different elements: opposition and participation

Here are some examples of Participation:

  • helping co-workers with discrimination claims
  • talking to a (EEO) Equal Employment Opportunity officer
  • being a likely witness
  • talking about filing a complaint

Employees have been given a wide berth when it comes to protected activity in participation. Typically, when involved in any investigation, hearing, providing testimony, assisting someone else or making a claim the employee is protected from retaliation.

Here are some examples of Opposition:

  • peace protests (picketing)
  • inquiring if gender is the reason for an employment action
  • declining to perform an assigned task believed to be discrimination
  • requesting a reasonable accommodation
  • expressing intent to file a complaint

The one issue with opposition is that is has to be “reasonable”. I know, what is deemed “reasonable”. Well the following and hopefully some common sense, which isn’t so common anymore, will explain better. These are some NON PROTECTED actions not considered “reasonable” opposition by the employee.

  • violating established employer policy
  • willfully undermining company business activity
  • refusing to comply with non discriminatory commands
  • abusive or violent protests

There is a significant difference between “participants” and “opposers”. “Opposers must act in “good faith” or honest intent when believing the boss has violated their employee rights. However, “participants” usually do not have to share a belief of wrongdoing on the part of the employer. For example, a co-worker is protected in assisting my investigation of the boss violating my (ADA) Americans with Disabilities Act rights without believing or knowing my rights have been violated.

I will explain the #2 and #3 areas involving retaliation, “Adverse Action” and “Causal connection” next post coming soon!

More Blessings To Come!

Yancey


2 Responses to “Employee retaliation may be insidious! Part 1”

  1. Chad S. says:

    Before I read your blog, I thought that an act could be considered ‘retaliation’ ONLY if it occurred AFTER an employee submitted a complaint (to the EEOC, or internally to HR or Employee Relations) of discrimination and/or harassment.

    However, this article does not mention such a prerequisite. For example, under ‘Protected Activity’ –> ‘Opposition,’ “requesting a reasonable accommodation” is listed. Does this mean that, if I request a reasonable accommodation, and in response my boss threatens to “replace” (terminate) me, suddenly lowers my performance scores (gives me a bad evaluation when all previous ones were good), and in that evaluation he refers indirectly to my request as “having a bad attitude about the job,” these acts can be considered retaliation, even if I had not yet filed a formal complaint alleging discrimination?

    If you believe the answer is ‘yes,’ how sure are you? Can you please send me references? (i.e., primary sources–where you got this of information) Again, I’ve always thought an act could be considered retaliatory only if it was preceded by a complaint alleging discrimination/harassment. For the same reason I thought that, in the absence of a preceding complaint, such acts could only be considered discrimination and/or harassment.

    On a separate topic, you include the phrase “casual connection,” when I think you mean “causal,” NOT “casual.” This difference is important because the words “casual” and “causal” have almost opposite meanings in this context. A “causal” relationship means one thing occurs first, and apparently causes a second thing as a result. I think this is what you mean to say. In contrast, a “casual” relationship implies a superficial/trivial/insignificant connection. I do NOT think this is what you mean, and this might just be a typo, but “casual” is used throughout part 2 of this article.

    This is important because, when evaluating the credibility of information in [blog] articles, I pay attention to spelling, usage, grammar, etc. If there are glaring errors, I tend to dismiss the content as unreliable.

    Don’t get me wrong; I appreciate what you are trying to do here. I just want to help you make it better, and also to be sure I’m getting clear, correct information.

    I also suggest including ‘publication date’ with your blog entries. I don’t see one here, and laws do change over time, after all.

    • The BasicEmployeeRights Advocate says:

      Hello thanks for your input and observations. The following is not the source(s) used for this particular article. However, it offers answers for your statement;

      “I thought that an act could be considered ‘retaliation’ONLY if it occurred AFTER an employee submitted a complaint (to the EEOC, or internally to HR or Employee Relations) of discrimination and/or harassment.”

      Retaliation can occur when employers punish employees for participation in “protected conduct”.

      Examples of “protected conduct” are…..

      Requesting ADA accommodation

      Alerting the employer of (FLSA) mis-classification

      (FMLA) leave requests

      Whistleblower Protection Act (Federal employees)

      …and a host of others.

      =====> http://www.fklaborlaw.com/faqs/workplace-retaliation-law.html

      Yes, you are correct “casual connection” should be “causal connection” is a typo. Thanks for pointing that out. Also, I’m aware that “laws change over time”. When they change I update. However, I don’t date these blog posts for other reasons.

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