Labor and Employment

Retaliation and Whistle Blowing FAQ

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley
Learn the basics of retaliation on the job—what it is, how to prove it, and available remedies.

Q: What is retaliation?

  • A: Retaliation occurs when an employer takes a negative job action against an employee because the employee engaged in a protected activity. For many workplace laws, protected activities include complaining of illegal conduct, such as harassment, discrimination, wage theft, or safety violations; participating in a workplace investigation into these issues; or testifying as a witness in a lawsuit. Protected activities also include asserting your rights under a workplace law, such as requesting leave under the Family and Medical Leave Act or filing a claim for workers' compensation.

Many employment laws intended to protect employees include a prohibition on retaliation. These laws are generally enforced through employee complaints; government agencies don't randomly audit workplaces looking for violations of employee rights. If employees were not protected from being disciplined or fired for complaining, very few employees would be willing to come forward, and these important workplace laws could be broken with impunity. Similarly, if it were legal for employers to punish employees for exercising their legal rights—for example, to take time off work—then employees would be too frightened to take advantage of their rights under employment laws.

Q: Does retaliation happen often?

  • A:Unfortunately, yes. In 2015, for example, almost 40,000 charges of retaliation were filed with the Equal Employment Opportunity Commission (EEOC). The EEOC enforces the federal laws that prohibit discrimination and retaliation; as explained below, employees must file a charge with the EEOC before they are legally allowed to file a retaliation lawsuit based on an underlying complaint of discrimination or harassment. Since 2008, employees have filed more charges alleging retaliation than charges alleging any other kind of discrimination or harassment.

Q: How do I prove retaliation?

  • You engaged in protected activity, which usually involves exercising some right you have under a state or federal law, like filing a discrimination claim with the EEOC, complaining to your company's human resources department about unpaid overtime, or participating in an OSHA investigation of safety violations at your workplace.

  • Your employer took some adverse action against you for—example, by firing you, disciplining you, demoting you, or transferring you to an undesirable worksite or shift.

  • Your employer took the adverse action because you engaged in the protected activity. Often, timing is the key to proving this link. If, for example, you had stellar performance reviews, your manager told you that you were about to receive a raise, then your pay was cut a few days after you complained of sexual harassment, that would be good evidence that you were punished because you complained.

Q: Other than firing me, what other employer actions can lead to a retaliation claim?

  • A: Your employer may not take any adverse action against you because of your protected activity. The Supreme Court has said that an adverse action includes any negative job action that would deter a reasonable employee from making a complaint. This might include an employer doing the following:
  • refusing to hire you, refusing to promote you, or demoting you
  • giving you negative performance reviews
  • disciplining you
  • cutting your pay or hours
  • transferring you to a less desirable job, shift, or worksite
  • denying your request for time off, or
  • giving a prospective new employer a bad reference about you.

Q: Are retaliation and whistle blowing lawsuits the same thing?

  • A: Retaliation and whistle blowing claims are similar, in that they both involve an employer punishing an employee for taking action. However, a retaliation claim alleges that your employer took action against you for engaging in a protected activity: something you are legally entitled to do, under the employment laws that protect your workplace rights, like filing a claim for workers' compensation benefits or filing a discrimination complaint.

Whistle blowing generally refers to reporting your employer's illegal activities to the government or to law enforcement. For example, if you told the I.R.S. that your employer had filed fraudulent tax returns, or reported to your state's food safety agency that your employer was selling contaminated products, you would be a whistleblower. If your employer disciplined or fired you for blowing the whistle, you might be able to sue. Some states have whistleblower statutes, which protect employees from being fired for reporting illegal activity. Some states allow employees who have been fired for reporting illegal activity to sue for wrongful termination. If you believe you were mistreated because you blew the whistle on illegal workplace behavior, you should talk to a lawyer to find out what your options are.

Q: What are protected activities?

  • A: In the context of a retaliation claim, protected activities are things that you have a legal right to do, including:
  • complaining of discrimination or harassment, whether you complain within your company (for example, to the HR department or to your manager), to a government agency (like the EEOC), or in a lawsuit
  • exercising your rights under employee protection laws by, for example, taking medical leave or workers' comp leave
  • complaining of violations of wage and hour laws
  • complaining of workplace safety violations, and
  • participating in a workplace investigation into any of these areas, whether that investigation is conducted internally or by a government agency.

Q: How do I bring legal claims against my employer for retaliation?

  • A: If you believe your employer retaliated against you for complaining about discrimination or harassment, you may not go straight to court and file a lawsuit. Instead, you must first file a charge of retaliation with the EEOC or your state's fair employment practices agency. (This prerequisite also applies to filing a lawsuit for discrimination or harassment.)

Once you file a charge, the agency will contact your employer and ask it to respond. Then, the agency might investigate, try to settle the claim, or ask you and your employer to mediate the dispute. When the agency has finished processing your claim (or sooner, if you request), it will issue you a right to sue letter, stating that you have met the requirement of filing a charge. You may then file a lawsuit.

You may have a very short time—as few as 90 days, in some cases—to file a lawsuit once you receive a right to sue letter. That's one of many reasons why you should speak to an experienced employment lawyer early on in the process.

If you are bringing another type of retaliation claim—such as retaliation for complaining of overtime violations or exercising your right to take FMLA leave—you don't have to file a claim with a government agency. Instead, you may go straight to court. The time limits and requirements for filing a lawsuit vary; a lawyer can help you figure out how best to proceed.

Q: What are the remedies for retaliation?

  • A:Your remedies (what you can recover from your employer if a judge or jury finds that your employer retaliated against you) depend on the law your employer violated. And, there are different remedies available under federal laws and state laws.

If you win a retaliation claim, your remedies might include some or all of the following:

  • reinstatement to the position you held before your employer illegally fired or demoted you
  • back pay: the wages and benefits you lost as a result of the retaliation
  • front pay: the wages and benefits you will lose in the future because of the retaliation
  • attorney fees and court costs
  • compensatory damages: an award of money to compensate you for your emotional distress, sometimes also called pain and suffering, and
  • punitive damages: an award of money intended to punish your employer for breaking the law.

Q: If I'm wrong about my employer's actions or conduct, am I still protected from retaliation?

  • A: As long as you have a reasonable, good faith belief that your employer is doing or has done something unlawful, you are protected from retaliation for complaining about it. This is so even if you are wrong about the underlying conduct. For example, let's say you believe you were denied a promotion because of your age. The last three people promoted were in their 30s, and you and another internal candidate who were passed up are in your 60s. You file a complaint with your human resources department, which investigates and determines that all candidates for promotion were evaluated fairly and the employees who were promoted all had skills that you lack. However, your manager demotes you for complaining. In this situation, even if a court found that your employer did not discriminate based on age, you could still win your retaliation claim if your manager demoted you because of your complaint.

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