Retaliation | Practical Law

Retaliation | Practical Law

Retaliation

Retaliation

Practical Law Glossary Item 6-503-9612 (Approx. 5 pages)

Glossary

Retaliation

In the employment context, taking adverse action against an employee because they engaged in certain activity protected by law. Conduct constituting protected activity varies by statute. Some examples include:
  • Lodging an internal complaint alleging unlawful discrimination or harassment by the employer.
  • Filing an administrative complaint or lawsuit alleging the employer violated the Fair Labor Standards Act.
  • Whistleblowing, in certain contexts.
An adverse action sufficient to support a retaliation claim varies by jurisdiction and statute, but typically includes an action that might dissuade a reasonable worker from engaging in protected activity, such as:
  • Terminating the employee.
  • Demoting the employee.
  • Reducing the employee's work hours.
  • Reassigning the employee to a less desirable position or duties.
  • Third-party reprisals, such as terminating someone with a close relationship to the employee (like a fiancé).
Generally, the individual who engaged in protected activity and experienced retaliation can bring an action against the employer for unlawful retaliation. Others who have a close association with that individual and who fall within the zone of interest protected by the applicable statute also may have standing to sue the employer for unlawful retaliation. For example, under Title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e-3), it is unlawful for an employer to retaliate against an employee who engaged in protected activity by terminating that employee's fiancé (Thompson v. North American Stainless, LP, 562 U.S. 170 (2011)).
Federal laws prohibiting retaliation include:
Many state statutes regulating the employment relationship also prohibit retaliation by employers. For more information, see Anti-Discrimination Laws: State Q&A Tool: Overview of State Anti-Retaliation Law.
For more information on retaliation generally, see Practice Note, Retaliation.