Areas of Practice: Retaliation
Unfortunately, retaliation against employees for exercising rights to which they are entitled or for carrying out duties they are legally or morally required to has become relatively common in the context of employment law. Many employment laws that prohibit discrimination also prohibit retaliation. For example, Title VII of the 1964 Civil Rights Act not only bars sex discrimination but also retaliation against those who complain about or oppose sex discrimination.
Some employers mistakenly assume that they can retaliate against an employee who complains about something that does not technically or legally amount to discrimination. Indeed, the courts have made clear that if an individual complains about what he or she reasonably believes is unlawful discrimination, he or she cannot be retaliated against. The act of making a complaint based on a reasonable belief is generally referred to as "protected activity."
Under certain retaliation laws, protected activity typically takes two forms: opposition and participation. "Opposition" simply means that an employee has complained about what he or she reasonably believes is unlawful discrimination or has otherwise spoken out against it. Such a complaint could be verbal, in writing, or both. The complaint could be internal (made to the employer itself) or made to a civil rights commission or other government agency. "Participation" means that an employee has become involved in a discrimination investigation or case, as someone who is interviewed or gives testimony.
A plaintiff can prove retaliation along the same lines as proving discrimination, but in addition, the element of timing can serve as important evidence. More specifically, a short period of time between the protected activity and the unfavorable employment action (termination, demotion, discipline, etc.) often serves as strong evidence of retaliation. Additionally, comparing the employer's treatment of the employee before his or her protected activity to its treatment of the employee after the protected activity often serves as important evidence.
As with many discrimination cases, a plaintiff asserting a claim of retaliation may have a legal obligation to "exhaust her administrative remedies" before bringing a lawsuit. In other words, before a retaliation lawsuit can be filed, the complaint of retaliation must be brought to the attention of an appropriate governmental civil rights agency—usually the Iowa Civil Rights Commission and/or Equal Employment Opportunity Commission.
The body of law regarding employment retaliation is ever-changing. In addition to prohibiting retaliation against those who complain about discrimination or participate in discrimination-related proceedings, the law also makes it unlawful for an employer to retaliate against an employee for, among other things:
- Pursuing workers compensation benefits;
- Pursuing unemployment benefits (usually in the context of temporary layoff);
- Making a report of child abuse;
- Complaining about unsafe/unhealthy work conditions;
- Complaining about pay practices or overtime compensation issues;
- Reporting illegal conduct or refusing to engage in illegal conduct; and
- Complying with a subpoena, serving on a jury, or giving truthful testimony.
Have you been unlawfully retaliated against? Contact us at LeGrant Law Firm, we can help!
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