If other kids in your school picked on you when you were a child, at least one well-meaning relative probably told you that you should fight back or do something similar to stand up for yourself. The problem is that, by the time you received that advice, you probably had already tried numerous times to stand up for yourself to get the bullies to leave you alone or stop messing with you, and it only made the situation worse; if anything, the bullies became more determined to in their efforts to torment you. Unfortunately, workplace harassment often follows a similar pattern. You and I may never understand what makes some people treat others decently, or at least to mind their own business, while others are willing to put effort into harassing someone, but at least the law gives you a means to protect yourself from harassment that gets worse after you try on your own to make it stop. If you have experienced retaliation after filing an employment discrimination complaint or requesting a reasonable accommodation for a disability, contact the Alabama employment discrimination lawyers at HKM Employment Attorneys LLP.
Why Do Employers Retaliate Against Employees Who Stand Up for Themselves?
To understand retaliation in the workplace, one must first understand some things about employment discrimination. Federal laws such as the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) of 1990 prohibit employment discrimination. The ADA deals specifically with discrimination based on physical, intellectual, and psychological disabilities, be they temporary or permanent. The Civil Rights Act and other laws that went into effect after it pertain to discrimination based on protected characteristics such as race, religion, gender, age, and marital status. At the state level, Alabama has a separate law providing additional protections against discrimination for workers aged 40 or older who experience age discrimination, but for all other types of discrimination, it simply follows the rules required by federal law.
Employment discrimination can take many forms, most of which fall under the category of “adverse actions.” In the context of employment law, the term adverse actions can refer to any of the following:
- Refusal to hire
- Rescinding a job offer already given
- Denial of a promotion for which the employee is qualified
- Refusal to give the employee a pay raise when other employees with a similar employment history have received raises
- A negative performance review containing untrue or unfairly critical information
- Wrongful termination of employment
- A reduction in pay or a demotion
- Negative references for a former employee who is seeking new employment
Perhaps the most insidious form of discrimination is harassment and the creation of a hostile work environment. For all of the adverse actions listed above, there is a clear record of when they happened and what the employer said. The employer may argue that they did not the adverse action because of the employee’s protected characteristic or in retaliation for a discrimination complaint by the employee, but at least there is clear proof that the employer took the action, and the employee can provide other evidence that the adverse actions should be considered an act of discrimination. Conversely, it is much easier for an employer to deny that their actions were intentionally intimidating or that their comments were derogatory, especially if there is no audio recording or written transcript of them. With regard to harassment as discrimination or as retaliation, it is easier for employers to claim that the employee is imagining or misinterpreting the employer’s actions, or even fabricating the claim entirely. If this happens, the Alabama employment discrimination lawyers at HKM Employment Attorneys LLP can help you prove your claims.
When employers retaliate against employees who complain about discrimination or request reasonable accommodations for a disability, it is usually to intimidate the employee out of escalating the complaint further. In other words, if the employer is trying harder to scare you after you point out something that they are doing wrong, it means that the employer knows that they did something wrong. Discrimination is against the law, and so is refusal to make reasonable accommodations for an employee with a disability.
Whether a requested accommodation is considered reasonable depends on the nature of the accommodation the employee is requesting, as well as on the employer’s overall budget. Small companies have less of a duty to make accommodations for employees at their own expense, simply because they lack the resources to do so. For example, it is reasonable for an employee of a small business to be allowed to bring a guide dog to work or to use their own Braille-enabled laptop computer, but not to ask a five-employee company to renovate its building and build an elevator for an employee who uses a wheelchair.
Legal Protections Against Employer Retaliation
You have the right to fight back against retaliation for filing a discrimination complaint or requesting an accommodation for a disability, but the deadlines are short. For private sector employees, if you file a discrimination lawsuit, you must do so no more than 180 days after the retaliation or other discriminatory act occurred. (Retaliation is often an ongoing pattern, so your lawyer can help you decide which date to count from.) If you are a federal employee, you must notify the Equal Employment Opportunity Commission (EEOC) no more than 45 days after the retaliation happened. This notice to the EEOC is not a formal complaint, but if you do not notify the EEOC within this window, any complaint you file later will be dismissed.
Likewise, retaliation by employers is very common in whistleblower claims, where an employee reports fraudulent dealings by their employer under the False Claims Act. In fact, the False Claims Act contains provisions specific to employer retaliation against employees who report misconduct.
Contact an Alabama Employment Discrimination Lawyer About Employer Retaliation
Do not be afraid to tell the truth if your employer retaliates against you for complaining about discrimination against you or against another employee. Contact the Alabama employment discrimination lawyers at HKM Employment Attorneys LLP to set up a consultation.