Retaliation, which is an attack undertaken in response to another attack, is expected and even welcome in certain circumstances. In military strategy or chess, for example, retaliation comes with the territory, and you are always thinking about what you will do to protect yourself from damage resulting from your opponent’s retaliation. Employers are not opponents of their employees, however, and they have no business retaliating, because doing one’s job is not an attack, certainly not an attack against the person paying the worker to do their job. In some cases, though, when you simply obey the law or exercise your rights, your employer interprets it as an attack or a threat and responds accordingly. A large corporation attacking an individual is as unfair as it sounds, and it is also illegal. Employment laws protect employees against retaliation by their employers, but it still sometimes occurs. The Philadelphia employer retaliation lawyers at HKM Employment Attorneys LLP can help you if your employer retaliated against you for doing something that you were within your rights to do.
Protected Activities: Workers’ Rights and Employers’ Responsibilities
The law defines employer retaliation as an employer taking adverse action against an employee in response to the employee engaging in a legally protected activity. An adverse action can be any of the following:
- Refusal to hire
- Rescinding an existing job offer
- Excessive scrutiny of job performance or putting an employee on probation
- Negative performance reviews
- Hostile work environment
- Undesired reassignment of job duties
- Demotion or reduction in pay
- Refusal of promotions or raises for which the employee is eligible
- Termination of employment
In certain circumstances, adverse actions are justifiable and appropriate. For example, adverse actions are an appropriate response to consistently poor job performance or misconduct on the part of the employee. Adverse actions count as discrimination when they are due to a protected characteristic of an employee, such as race or sex. Adverse actions count as retaliation when they are a reaction to an employee’s engagement in a protected activity.
As for protected activities, they are actions that all employees have the right to take and for which adverse actions are not acceptable consequences. The law explicitly protects the right of workers to engage in these activities because protected activities expose the employer to the risk of financial losses or damage to reputation. Some protected activities relate to the right of employees to look after their health and their families, such as the following examples:
- Requesting an unpaid leave of absence pursuant to the Family and Medical Leave Act (FMLA)
- Filing a workers’ compensation claim after an injury that occurred at work or a diagnosis of a recognized occupational disease
- Requesting accommodations for a documented disability
Other protected activities are in the interest of the public, although they present an inconvenience to the employer. These have to do with reporting misconduct in the workplace, such as the following protected activities:
- Filing a discrimination complaint with the employer’s own human resources department, the Equal Employment Opportunity Commission (EEOC), or the Pennsylvania Human Relations Commission (PHRC)
- Reporting a workplace safety hazard or a violation of legal safety standards to the Occupational Safety and Health Administration (OSHA)
- Filing a qui tam action pursuant to the federal False Claims Act
- Reporting criminal activities in your workplace to law enforcement
- Participating in an internal or external investigation into wrongdoing or misconduct at your place of employment or within your organization
Saying “No” to a Request Is Not Employer Retaliation, but Responding to a Request With a Punishment Is
If an employer takes adverse action against you shortly after you report misconduct in your workplace to the relevant regulatory body, then proving that the adverse action constitutes employer retaliation is fairly simple. Things are less clear-cut when the trouble begins shortly after you request a disability accommodation. In cases like this, employer retaliation is death by a thousand papercuts, as your employer gradually makes your life at work more difficult. This is known as a hostile work environment, and it counts as an adverse action. When an employer refuses to make an accommodation, it can feel like your employer is pressuring you to quit, since it is so hard to do your job without the accommodation.
Whether your employer’s non-fulfillment of your request for disability accommodations counts as retaliation depends on the details, though. The law requires employers to provide reasonable accommodations for employees with disabilities. An accommodation is reasonable if it enables the employee to do his or her job if the employee would not be able to do the job without the accommodation, and if making the accommodation does not present an excessive financial burden for the employer. An accommodation that is reasonable for a big corporation with thousands of employees would be far beyond the capabilities of a local small business with only a few dozen employees. You would not expect a business that operates out of its owner’s home to build a wheelchair ramp for an employee, for example, but it could allow the employee to work remotely. Employers and employees should negotiate to find an accommodation that would be sufficient for the employee and feasible for the employer.
In other words, as long as your employer is legitimately and in good faith trying to find a solution to the fact that an aspect of the work environment presents obstacles for you, it is not retaliation, it is simply a matter of your employer working with the resources available to it. If your employer rescinds a job offer or terminates your employment shortly after you submit your doctor’s note that lists the accommodations you require, this counts as retaliation. An employment lawyer can help you with the negotiation process.
Contact HKM Employment Attorneys, LLP About Employer Retaliation
The Philadelphia employment lawyers at HKM Employment Attorneys, LLP can help you if your employer has retaliated against you after you engaged in a protected activity. Contact the employment lawyers at HKM Employment Attorneys LLP in Philadelphia, Pennsylvania, to set up a consultation.
Call 215-608-2369, schedule a call, or fill out this form and we will get back to you ASAP.