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RETALIATION Q & A

Q: Does federal and Florida law protect me against retaliation in the workplace?

A: The federal employment discrimination laws contain ant-retaliation provisions which prohibit employers from retaliating against employees for opposing discrimination or harassment in the workplace.  The federal laws which protect employees against retaliation include Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Age Discrimination In Employment Act, and the Americans With Disabilities Act.  The Florida Civil Rights Act is the Florida law which protects employees against retaliation.  

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Q: What is unlawful retaliation under employment discrimination law?

A: Unlawful retaliation occurs when an employer subjects an employee to an adverse employment action in retaliation for having engaged in statutorily protected activity under an employment discrimination law.

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Q: What do I have to do in order to be protected against retaliation?

A: Employees are protected against retaliation when they engage in statutorily protected activity under an employment discrimination law.  Simply stated, statutorily protected activity under an employment discrimination law means that the employee complained about discrimination or harassment in the workplace.  In order to be protected against retaliation however, the employee must have complained about discrimination or harassment on the basis race, color, national origin, sex, pregnancy, religion, age, or disability. 

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Q: Do I have to prove that the discrimination or harassment complained about was unlawful to be protected against retaliation?

A: In order to be protected against retaliation, an employee does not have to prove that the discriminatory or harassment behavior complained about was in fact unlawful discrimination or harassment.  Rather, an employee is protected against retaliation when he or she had a good faith, reasonable belief that the discriminatory or harassing behavior was unlawful.  In other words, you do not have to be right about whether the discrimination or harassing behavior was unlawful in order to be protected against retaliation.

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Q: What is an adverse employment action?

A:  Generally, an adverse employment action is one that inflicts economic harm against an employee, such as failure to hire, demotion, failure to promote, reduction in pay or hours, suspension, layoff, and termination.  However, actions that do not result in economic harm to an employee can also constitute an adverse employment action, including disciplinary action, undeserved negative performance evaluation, disadvantageous transfer or work schedule, and denial of training. 

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Q: Can my employer retaliate against me for filing with the EEOC?

A: Employees cannot be retaliated against for filing a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC), the Florida Commission on Human Relations (FCHR), or any fair employment practices agency.  Employees also cannot be retaliated against for providing information to the EEOC, FCHR, or any fair employment practices agency.  Filing a charge of discrimination or providing information to these agencies constitutes statutorily protected activity under employment discrimination laws.     

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Q: Am I protected from retaliation for complaining about discrimination against me?

A: Employees are protected against retaliation for complaining about discrimination against them in the workplace.  In order to be protected against retaliation however, you must have complained that you were being discriminated against because of your race, color, national origin, sex, pregnancy, religion, age, or disability.  For example, if you complained that were being discriminated against because of your race or disability, the employer cannot retaliate against you for making the complaint.

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Q: Am I protected from retaliation for complaining about harassment against me?

A: Employers cannot retaliate against employees for complaining about harassing behavior against them in the workplace.  To be protected against retaliation however, you must have complained that you were being harassed because of your race, color, national origin, sex, pregnancy, religion, age, or disability.  For example, you are protected against retaliation for complaining about being subjected to abusive or harassing behavior in the form of racial comments, ethnic slurs, sexist comments, or derogatory ageist remarks.  Likewise, you are protected against retaliation for complaining about sexual harassing behavior towards you or another employee in the workplace.

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Q: Can an employer retaliate against me for complaining about discrimination or harassment towards others?

A: Employees are protected against retaliation for complaining about discrimination or harassment against other employees in the workplace.  In order to be protected against retaliation however, you must have complained that another employee was being discriminated against or harassment because of his or her race, color, national origin, sex, pregnancy, religion, age, or disability.  For example, a complaint that another employee was being mistreated or abused because of his or her age is protected, while a complaint that another employee was being treated unfairly or abused because jealousy or mismanagement is not.

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Q: Can a past or prospective employer retaliate against me?

A Employees are protected against retaliation by any past, present, or prospective employer for having engaged in statutorily protected activity under an employment discrimination law.  For example, a past employer cannot make false statements about you to a prospective employer in retaliation for having complained about discrimination or harassment during your employment.  Likewise, a prospective employer cannot refuse to hire you because it is aware that you complained about discrimination or harassment while employed by another employer.

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Q: How do I show that an adverse employment action is related to my protected activity?

A: As part of proving a retaliation case, an employee must show that the adverse employment action is causally related to the employee’s statutorily protected activity.  In other words, the employee must show that there is a causal connection between the statutorily protected activity and the adverse employment action.  You can prove a causal connection through a broad array of evidence.  The most powerful evidence of a causal connection is close timing between the statutorily protected activity and the adverse employment action.  For example, you were terminated one month after complaining about sexual harassment.  Other evidence that can be used to establish a causal connection includes:  (1) treating you differently or less favorably from other employees; (2) scrutinizing your work performance or attendance; (3) subjecting you to disciplinary action; (4) abusive or harassing actions; (5) remarks reflecting anger about your discrimination or harassment complaint; and (6) remarks reflecting a desire or intent to retaliate. 

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Q:  Do I have a case even if the employer did not tell me I was fired for a retaliatory reason?

A: It is not necessary that the employer tell you that you are being fired for a retaliatory reason in order to have a legal basis for bringing a retaliation lawsuit.  For example, the employer does not have to tell you that you are being fired because you complained about sexual harassment.  Rarely will an employer admit to a retaliatory reason or leave a paper trail establishing a retaliatory reason for an employment decision.  Because such “smoking gun” evidence almost never exists, retaliation cases are almost always proven by circumstantial evidence.

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Q: What types of circumstantial evidence can be used to prove retaliation?

A: The type of evidence that can be used to establish a causal connection between the statutorily protected activity and the adverse employment action also constitutes the type of circumstantial evidence that can be used to prove retaliation.   

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Q: Can retaliation against other employees be used to prove my case?

A: Generally, the employer’s retaliatory behavior against other employees can be used to prove that the employer retaliated against you.  This means that testimony from other employees about the retaliatory behavior they endured from the employer can be used to prove your retaliation case.  For example, testimony from another employee that she was fired after complaining about sexual harassment is evidence that you were retaliated against for complaining about discrimination or harassment in the workplace.

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Q: What are the types of evidence that may reflect retaliation against me?

A: A retaliation case can be proven in many different ways and with a broad array of evidence.  In evaluating whether or not you were subjected to retaliation, it is helpful to consider the following questions:

* After you complained about discrimination or harassment, did the employer begin to scrutinize your work performance, work schedule, or workplace conduct?

* After you complained about discrimination or harassment, did the employer reduce your hours or pay, demote you, transfer you to a disadvantageous position, give you a more burdensome work schedule, increase your work load, withhold work-related assistance, give you a poor performance evaluation, or subject you to disciplinary action?

* Was there a short passage of time between your complaint about discrimination or harassment and the challenged employment action?

* Did the employer treat you differently or less favorably from other employees?

* Did the employer subject you to the challenged employment decision for something other employees have done and were not disciplined or terminated for?

* Did the employer give you a false, factually untrue, or phony reason for the challenged employment decision?

* Did the employer fail to follow company policy when making the challenged employment decision?

* Did any employee involved in the challenged employment decision make any remarks reflecting anger about your discrimination or harassment complaint?

* Did any employee involved in the challenged employment decision make any remarks showing a desire or intent to retaliate?

* Did the employer fail to correct discrimination or harassment in the workplace despite your complaint?

* Did the employer retaliate against other employees?

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Do You Have More Questions Or Believe You Have A Case?

If you have more questions or believe that you have a retaliation case, please contact our office to speak with an employment lawyer.  You will never have to pay to speak with an employment law attorney here.  We can help you take action to protect and vindicate your employee rights.  We take retaliation cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.    

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