Workplace Retaliation Facts

  • Objective Test
  • Context
  • The Role of Motive
  • The Role of a Hostile Environment
  • Proving Retaliation

One important concept for people with a human resources degree to understand is what constitutes workplace retaliation. Workplace retaliation happens when a person engages in a protected activity and faces retaliation from the employer as a result. Many people may think retaliation can be identified as a straightforward series of events in which an employee reports harassment or discrimination and is fired or demoted. However, determining whether retaliation has happened can be more complex than this.

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1. Objective Test

The U.S. Supreme Court has established that there is an objective test for retaliation. This precedent was set by a case called Burlington Northern & Santa Fe Railway Co. v. White in which a woman who was the only forklift operator said she faced sexual harassment and was reassigned to different duties after complaining about the harassment. Her employer argued that there was no retaliation since she was neither fired nor demoted. However, the Supreme Court ruled that retaliation is identified by determining whether, by a reasonable standard, the employer’s action adversely affects the employee and would discourage the employee from pursuing a complaint.

2. Context

The Supreme Court also found that actions have different connotations for determining whether retaliation has taken place depending on the context. For example, an action such as changing the start time for a shift could have little impact or could even be positive for one employee while for another it could cause serious problems. Therefore, courts recognize that it is not the action itself but how it affects the employee that is important in identifying workplace retaliation.

3. The Role of Motive

A supervisor’s motivation is not necessarily the determiner of whether or not an act counts as retaliation. An example given by Forbes is one in which an employee is moved to a different department or project to separate that employee from the person who is allegedly causing the harassment. While this might appear to be an action taken to protect the employee, if it adversely affects the employee’s career, it could be considered retaliation.

4. The Role of a Hostile Environment

In general, a hostile work environment is only illegal if it involves discrimination or harassment based on a person’s membership in a protected class. This means the discrimination or harassment must be based on factors such as a person’s race, religion, sex, age, disability, nationality, use of the Family and Medical Leave Act or whistleblowing. Some jurisdictions offer additional protection. If the employee reporting retaliation was not harassed or discriminated against based on being in a protected class, there may be no legal grounds to pursue a case of retaliation.

5. Proving Retaliation

According to the Equal Employment Opportunity Commission, the employee must prove that retaliation has occurred, and the employer is not required to disprove it. Standards of proof differ depending on the employer and type of claim. Evidence of misconduct or poor performance might hurt an employee’s claim of retaliation.

One way employers can prevent claims of retaliation is to clearly document all actions related to an employee and to have explicit policies about workplace discrimination and harassment and how it should be reported and investigated. It is important for people with a human resources degree who plan a career in that field to fully understand the legal definition of workplace retaliation and how to prevent it.