What is unlawful retaliation?
Claims for unlawful retaliation must be specifically allowed under a particular law. For example, the following laws prohibit retaliation against a person for exercising their legal rights:
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Title VII of the Civil Rights Act of 1964, as amended in 1991
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The Family and Medical Leave Act (“FMLA”)
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The Fair Labor Standards Act (“FLSA”)
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Sarbanes-Oxley Act (“SOX”)
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Occupational Safety and Health Act (“OSHA”)
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Georgia Whistleblower Protection Act (public employees in GA), O.C.G.A. § 45-1-4
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To prove a claim of unlawful retaliation, an individual must establish 3 elements:
(1) Engagement in Statutorily Protected Activity
(2) Adverse Employment Action
(3) The Adverse Action Was Taken Because of the Protected Activity
Statutorily protected activity can take many forms.
The most common example is an employee complaining to their employer about actual or potential violations of their legal rights, such as a violation of one of the laws listed above.
NOTE: It is NOT enough to generically complain that you were treated “unfairly” or “differently.”
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- You must specify why, and specifically connect it to your assertion of legal rights.
Protected activity also includes:
- Participating in an investigation or lawsuit pertaining to someone else’s claim of unlawful workplace conduct.
- Adverse behavior by an employer towards an employee who is a close family member of another employee who engaged in protected activity.
An adverse action is an action which would dissuade a reasonable employee from raising a concern about a possible legal violation or engaging in other related protected activity.
Some examples include:
- termination
- demotion
- undesirable reassignment
- reduction in hours and/or pay
- workplace harassment
- creating a hostile work environment
When an employer takes an adverse action against someone almost immediately after they lodge a complaint of unlawful conduct or otherwise engage in protected activity, the close proximity in time can suggest a causal link between the events. But that conclusion is not certain.
If the employer has a legitimate reason for its actions, the affected employee must be able to demonstrate (with evidence) that the employer’s proffered explanation is not worthy of credence.
In addition, a connection cannot be established if the person who took the adverse action against the employee had no knowledge of the protected activity, unless the decision was influenced by someone else who knew about the protected conduct.
Unlawful Retaliation EXAMPLE – Protected vs. Non-Protected Conduct:
Jane was suspended by her supervisor (Bob) because she was late to work 3 times in 6 months. Jane’s coworker Jim (who also reports to Bob) was late to work 5 times during the same time period but never even received a written warning.
Absent any other differences between Jane and Jim, it appears that Bob was treating a male employee differently than a female, which looks like gender discrimination.
Jane goes to HR and says “Bob suspended me for being late 3 times, but he didn’t even write up Jim and he’s been late more than me. Is it because I’m a woman?” That would be enough to notify the employer that you’re suggesting gender discrimination (even if you are wrong).
- If Bob finds out about this complaint and then fires Jane, it looks like unlawful retaliation.
BUT the outcome is likely very different if Jane’s complaint was simply “Bob is treating me differently than Jim.” That may not be sufficient for a subsequent claim for unlawful retaliation because there could be many lawful reasons why Bob treated these employees differently. An employer has to be sufficiently placed on notice of potential unlawful conduct.
If You Need An Analysis of A Potential Claim of Unlawful Retaliation
(Individual or Business)
Please Submit a Consultation Request
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