Illegal Retaliation: what it is, and what it is not

austin-campbellTo some people, workplace retaliation just means their boss is taking revenge against them for something that they did—after all, that is often what people mean by “retaliation” in everyday life. Regardless of how moral that kind of retaliation is, not all workplace retaliation is the same in the eyes of the law. That is, something your employer does might well be retaliation as people generally understand it, without being illegal in the State of Texas.

The purpose of this article is to help shed some light on that critical difference, because when something crosses the line into being illegal retaliation, you as an employee may have many more options for pushing back against it or stopping it. I will focus on two major requirements of most anti-retaliation laws—”protected activity” and “material adversity.”

First, illegal retaliation requires that what your employer did to you was because of some “protected activity” you took part in. Many different laws define different things that are protected, but not everything is protected.

For instance, Title VII of the Civil Rights Act of 1964 defines protected activity to include opposing illegal discrimination or participating in some way in an investigation into illegal discrimination. Title VII also defines illegal discrimination as discrimination based on race, color, religion, sex, or national origin. Thus, some examples of protected activity would be reporting those kinds of discrimination (either against you or someone else) to your employer, filing a Charge of Discrimination with the United States Equal Employment Opportunity Commission, or helping in a discrimination investigation by the EEOC, the Texas Workforce Commission, or even your employer. Reporting that you are being illegally retaliated against can itself be protected. A report of discrimination must be reasonable and in good faith to be protected.

There are lots of other laws beyond Title VII that define protected activity. Here are a few common examples:

  • The federal Age Discrimination in Employment Act: reporting age discrimination can be protected activity;
  • The federal Americans with Disabilities Act: reporting disability discrimination can be protected activity;
  • The Texas Health & Safety Code: if you work for a hospital, mental health facility, or treatment facility, reporting something that is illegally putting patient health and safety in jeopardy may be protected activity;
  • The First Amendment: if you are a government employee, your exercise of free speech outside the scope of your job may be protected activity;
  • The Texas Whistleblower Act: if you are a government employee, reporting illegal actions by your employer to the appropriate law enforcement agency may be protected activity.

Because protected activity has a specific set of definitions, it can generally be a good idea to be very, very clear about what you are reporting. If possible, do this in writing and to an appropriate person or agency.

Beyond the typical kinds of protected activity above, some other things—like taking FMLA leave or discussing working conditions with your coworkers—may be protected activity as well.

Another critical element that pushes retaliation from the unethical into the illegal is when it is “materially adverse.” That generally matters for the federal laws discussed above. “Material adversity” means that whatever the employer did to you because of your protected activity is something that would dissuade a reasonable worker from doing whatever you did. While an obvious example would be firing you for reporting discrimination, other examples could include demoting you, reprimanding you, lowering your performance evaluation, or taking away your job duties. That said, not everything your employer might do to you because of your protected activity is necessarily materially adverse.

It can absolutely be frightening to report wrongdoing by your employer—especially to your employer. That can put a target on your back regardless of whether it is legally protected. If you are concerned about that happening, are being retaliated against—or even if you are not sure about those things—you should consult with an employment attorney.

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