Retaliation occurs when an employer takes an adverse employment action or otherwise discriminates against an employee who has complained about discrimination. Over the last decade, the number of reported incidents of retaliation has risen dramatically, outpacing every other type of discrimination claim.
In order for there to be retaliation, three elements must be satisfied:
- There must be an adverse employment action;
- Against a covered individual;
- Who has engaged in a protected activity.
Adverse Employment Actions
The retaliation itself must take the form of an adverse employment action against the employee. For example, this could include:
- Refusing to hire;
- Denying a promotion;
- Harassing an employee;
- Giving a negative performance evaluation or negative reference
- Increased surveillance in the workplace; or
- Other action, such as a baseless civil lawsuit.
Adverse actions like the above must be more substantial than an annoyance. For example, one negative comment does not constitute an adverse employment action. Likewise, a negative action, such as a negative evaluation or firing, that is justified by the employee’s poor performance is not an adverse action.
Who is a Covered Individual?
Covered individuals are those individuals who are protected by state or federal law and who have engaged in a protected activity. Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) is a federal law that prohibits retaliation. Title VII applies to federal and state governments, as well as private employers with 15 or more employees. However, Title VII does not apply to religious associations or private clubs.
Similar to Title VII, Colorado’s Anti-Discrimination Act (Co. Rev. Stat. § 24-34-402) also forbids retaliation. The Anti-Discrimination Act applies to all private employers in Colorado, regardless of their number of employees.
What Activities Are Protected?
In order for an adverse employment action to constitute retaliation, the employee must have engaged in a protected activity. Protected activities include:
- Reporting discrimination to an employer;
- Threatening to file charges of discrimination;
- Filing a charge of discrimination, including a hostile work environment charge;
- Filing a discrimination lawsuit;
- Picketing in opposition to discrimination;
- Serving as a witness for a charge or lawsuit; and
- Cooperating with an investigation.
Employees who engage these activities are protected from retaliation. However, some activities, such as threatening violence against an employer or interfering with the performance of others’ work, are not protected.
Contact an Experienced Retaliation Attorney
Being a victim of discrimination is bad enough. No worker should also have to suffer the effects of retaliation for complaining about discrimination. If you believe you have been retaliated against, an experienced employment attorney may be able to help. At HKM Employment Attorneys LLP, we have experience helping victims of retaliation receive job reinstatement, back pay, emotional damages, and – in some cases – punitive damages against their employers.
If you are a victim of workplace retaliation, do not wait – contact HKM Employment Attorneys LLP online or call us at 303-991-3075 for a private consultation.