April 20, 2018 Category: Retaliation
According to the U.S. Equal Employment Opportunity Commission, retaliation is the most frequently reported type of workplace discrimination. Retaliation can prevent an employee from getting a job, securing a well-deserved promotion, or even joining in on workplace activities. The best way to protect yourself from retaliation is understanding what it is and when it is most likely to occur.
What Is Retaliation?
Federal and California state law prohibit employers from penalizing employees or job applicants for (a) engaging in certain protected activities or (b) being a member of one or more protected classes. In California, penalties or adverse employment actions that are executed because of an employee’s protected action or status as a protected class member are considered retaliation.
Employees have the right to participate in certain activities that may be controversial, adverse to company policy, or perceived as questioning authority. Anti-discrimination laws explicitly prohibit employers from interfering with or punishing an employee for exercising these rights.
Protected activities can include:
- Reporting discrimination or sexual harassment
- Refusing sexual advances from a co-worker or employer
- Asking for accommodations for a disability
- Expressing political views, or
- Observing a religion.
Discrimination, at its very core, is often based on an inherent and personal characteristic. In some cases, these characteristics are the personal choice of an individual. In others, these characteristics are simply a fact of life. Employers are prohibited from discriminating against employees who identify as members of a protected class, regardless of the reason why.
Classes that are protected under California law include:
- Sexual orientation
- National origin
- Marital status
- Gender identity, and
- Military or veteran status.
Examples of Retaliation
Employers can retaliate against employees in a variety of ways. Some forms of retaliation are quite clear, while others are more subtle are more difficult to prove.
Refusing to Hire an Applicant
Employers may not refuse to hire an applicant solely because they have engaged in protected activity or are a member of a protected class. Employees who believe that they were not hired because of one of these reasons should speak with an attorney. It will be important to gather evidence to support your belief.
Example: Employer chooses Joe instead of Tiffany, despite the fact that Tiffany was better qualified for the position. It turns out that Tiffany rebuked the employer’s sexual advances during the interview process. Tiffany now feels that she was not chosen for the job because she rejected these unlawful advances. The employer may have to provide evidence for why he or she decided not to hire Tiffany.
Demoting or Terminating an Employee
Retaliation laws not only apply to job applicants, but to established employees, as well. Employers cannot fire or demote an employee if their actions are protected by law.
Example: Sue reports sexual harassment in the office, and is suddenly demoted to a job that pays substantially less than she makes now. Sue may have a claim for discrimination if her employer’s actions were in response to her protected actions.
As an employee, you have certain rights to participate in common activities within your company or organization. You cannot be excluded on the basis of a protected characteristic or protected activity.
Example: Sam identifies as an LGBT individual, and is in the process of transitioning to a female. Sam is not invited to the company-wide retreat and is regularly prohibited from participating in company activities. Sam suspects that this punishment is directly linked to her sexual identity.
Failure to Promote
Promotions are never guaranteed in a company environment. This is particularly true in at-will employment situations. However, there are certain times when companies have pronounced promotion policies. If an employer continually fails to promote an employee who objectively deserves it, there could be an issue of retaliation.
Example: Alex is the top performing associate in her company. In fact, she brings in more clients and money than any other employee. However, Alex is continually passed over for well-deserved and earned promotions. Instead, these promotions go to male employees who have less seniority and who have produced less for the company. Alex may suspect that her failure to get a promotion is directly linked to the fact that she is a woman thinking about starting a family.
California Employment Discrimination Attorneys
Do you suspect that you have been the victim of retaliation at work? Contact the Briski Law Firm to learn about your rights as an employee in California. If your employer retaliated against you for being a member of a protected class or for engaging in protected activity, you may have the grounds for a legal action. Contact our experienced San Jose employment discrimination attorneys today for a free consultation.