Discrimination … Retaliation … These are words every employer and employee wants to avoid. They are the cornerstones of a wrongful termination claim, and understanding what the law says about these claims will help employers and employees in the workplace.

What is retaliation in the workplace?

The U.S. Equal Employment Opportunity Commission defines retaliation:

Retaliation occurs when an employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity.

An “adverse action” can be any negative treatment by the employer in response to your participation in a “protected activity”, including the following:

• Termination
• Refusal to hire
• Denial of promotion
• Threats
• Unjustified negative evaluations
• Unjustified negative references
• Increased surveillance

Petty slights and annoyances are not considered adverse actions and therefore don’t fall under the umbrella of a retaliatory “adverse action.” Employees are also required to continue performing on the job, even if they file a retaliation complaint or make a discrimination claim. Employees who fail to perform their required duties after filing a claim of discrimination or retaliation create a basis for termination that is not wrongful under the law.

“Protected activity” covered by retaliation laws includes the engaging in or exercising of any right that is protected by law, such as:

• Complaining to anyone about discrimination against oneself or others
• Filing or threatening to file a claim or complaint with the Labor Commissioner
• Disclosing or discussing your wages
• Refusing to obey an order reasonably believed to be discriminatory or otherwise unlawful
• Using or attempting to use sick leave to attend to the illness of a child, parent, spouse, domestic partner, or child of the domestic partner of the employee
• Engaging in political activity of your choice
• Complaining about safety or health conditions or practices

Employers must be careful to avoid connecting any adverse employment action to any of the above protected activities (and similar activities). Employers must recognize that even if there is no actual connection between the two, employees can attempt to connect the adverse action to the exercise of a legal right based solely on the fact that the two occurred close in time.

What should you do if you find yourself in the middle of a discrimination or retaliation matter?

First of all, we always recommend you contact us so we can help you take steps necessary for your unique situation. Additionally, consider documenting your position and the events leading up to the termination. Documentation and third party witness testimony makes or breaks a party in a wrongful termination case.

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