Retaliation is when someone responds to an aggression or an offensive action with an aggressive or offensive action of such intensity that it equals or exceeds the one that triggered it. A series of retaliatory attacks is how feuds and personal grievances escalate into wars. Several children’s books dramatize this beautifully. The Butter Battle Book by Dr. Seuss shows two neighboring nations antagonizing each other about a disagreement over how to butter bread, and eventually they end up in a war so destructive that it threatens to obliterate the entire planet and everyone on it. Meanwhile, The Twits by Roald Dahl is about an elderly couple who engage in a series of increasingly outrageous actions just to get on each other’s nerves.
Retaliation rarely solves problems. It certainly does not belong in the workplace, but neither do bullying or favoritism, and yet all of those things are abundant in some places of employment. It is illegal in Colorado and under federal law for employers to retaliate against employees for engaging in legally protected activities. The Boulder employer retaliation lawyers at HKM Employment Attorneys LLP can help you if your employer retaliated against you or if you are planning to engage in a protected activity and want to protect yourself from possible retaliation by your employer.
Protected Activities and Employer Retaliation
In some situations, it is permissible, and even appropriate, for employers to take adverse actions against employees. For example, refusing to hire a job applicant is an adverse action. Employers are justified in not hiring you if you lied on your job application, a background check of your interactions with the criminal justice system and your credit history yielded red flags, or if there were fewer available positions than applicants, and the employer chose someone else based on the other applicant’s qualifications and interview. Changing your work schedule when you did not request it is also an adverse action, but your employer can do it if they are understaffed or to keep you from working at the same time as a coworker with whom you have had a conflict that resulted in one of you complaining to human resources. The ultimate adverse action is termination of employment, and employers can do this if you have engaged in misconduct or consistently performed poorly at work, or because your employer can no longer afford to keep you on the payroll. If you are employed on an at-will basis, meaning that you do not have an employment contract, your employer can even fire you for no reason.
Of course, even when “just because” is an acceptable reason for terminating an employment relationship, some reasons for taking adverse actions against employees are off limits. One of these reasons is discrimination, and the other is retaliation. You can sue your employer for retaliation if you can prove that the reason your employer took an adverse action against you was that you engaged in a legally protected activity. In employment law, protected activities are the exercise of the employee’s rights, even when the exercise of these rights is burdensome for the employer, financially or otherwise. The following are examples of protected activities:
- Voting in an election where you are eligible to vote, even if it means missing work to go to the polling place
- Filing a workers’ compensation claim if you get injured at work
- Reporting a workplace safety violation to the Occupational Safety and Health Administration (OSHA)
- Requesting FAMLI benefits for a leave of absence from work for medical reasons or family caregiving reasons
- Complaining about discrimination, either internally to your company’s human resources department or to the Equal Employment Opportunity Commission (EEOC)
- Reporting suspected crimes that you witnessed at your workplace to law enforcement
- Requesting accommodations for a disability
- Cooperating with an investigation at your workplace, whether by law enforcement or a regulatory body
Was the Adverse Action Against You Discrimination, Retaliation, or Both?
Employer retaliation sometimes occurs in tandem with discrimination. If you are wondering which category fits your case, it might be both. Employment discrimination happens when an employer takes an adverse action against you because of a protected characteristic of yours. Protected characteristics are personal characteristics such as race, age, sex, marital status, national origin, sexual orientation, disability, or religion.
Discrimination and retaliation can overlap. For example, if your employer fired you after you requested accommodations for a disability, this counts as employer retaliation, because requesting disability accommodations is a protected activity. It also counts as discrimination based on disability, which is a protected characteristic. Likewise, if your employer stopped giving you favorable performance reviews and started making negative comments about you after you took a paid maternity leave by claiming FAMLI benefits, this is retaliation, but it is also discrimination based on sex, pregnancy, and status as a parent. Employers that engage in one form of stinky behavior often engage in more than one. Workplaces where workers fear retaliation for complaining to OSHA about unsafe work conditions also tend to be workplaces where workers routinely face discrimination based on race, sex, and national origin.
Boulder Employer Retaliation Lawyer
You have the right to compensation if your employer illegally retaliated against you. Choosing which legal remedy to pursue is not always as simple as it sounds. Therefore, you should start by contacting a Boulder employer retaliation lawyer to strategize about your legal case. For example, your employment contract might specify that you must resolve disputes like these through arbitration before going to court. Your lawyer can help you figure out whether the mandatory arbitration clause is enforceable. Likewise, if your case involves both discrimination and retaliation, you must go through the Equal Employment Opportunity Commission (EEOC) before filing a lawsuit in court. In that case, you cannot sue unless and until the EEOC authorizes you to do so.
Contact HKM Employment Attorneys, LLP, About Employer Retaliation
The Boulder employment lawyers at HKM Employment Attorneys, LLP, can counsel you about employer retaliation. Contact the employment lawyers at HKM Employment Attorneys LLP in Boulder, Colorado, to set up a consultation.
