What Does Retaliation Look Like?

sad.jpgTaking adverse action against an employee is not a decision employers should take lightly. Not only can these actions affect workplace relationships and morale, they can also lead to messy legal battles. This is especially true if an employment decision is retaliatory.

Whether you are an employer or an employee in Minnesota, it is vital that you understand the elements of retaliation as well as what it might look like in practice.

What does “retaliation” mean?

Retaliation is the act of penalizing a worker through discharge or discipline in response to specific, protected actions. In accordance with federal retaliation laws, these actions include (but are not limited to):

  • Resisting sexual advances
  • Reporting discrimination or harassment to employers
  • Participating in misconduct investigations
  • Refusing to engage in unlawful behaviors
  • Requesting workplace accommodations
  • Filing a complaint or lawsuit citing Equal Employment Opportunity violations
  • Exercising right to use FMLA leave

Some examples of retaliation

  • Transferring a worker who complains of sexual harassment to a less desirable location in an attempt to separate him or her from the harasser;
  • Fabricating performance issues during an evaluation to “get even” with an employee for refusing sexual advances;
  • Verbally or physically abusing, harassing, or intimidating an employee who has needed to take time off work to care for a sick parent;
  • Changing an employee’s work schedule or holding back bonuses or other monetary awards in order to “punish” the employee for reporting an OSHA violation;
  • Cancelling contracts with the employee’s family members or other parties to the detriment of the employee, all in an effort to “get even.”

Not all employment consequences are retaliatory

It is crucial to understand that some of the adverse actions mentioned above (e.g., changing an employee’s work schedule) are not always retaliatory. Employers generally have the right to fire, reprimand, demote or transfer workers as they see fit, as long as the decision is not a retaliatory response to protected conduct, or otherwise unlawful.

As such, every case involving allegations of retaliation should be examined on its individual merits. Discussing a specific case with an attorney can be critical, especially if there are damages on the line.

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