Although we frequently hear about unlawful discrimination in the workplace, retaliation is just as big of a problem. And, from a legal standpoint, a retaliation case is often easier to prove. It is illegal for an employer to retaliate against an employee for engaging in protected activity. Protected activity can take many different forms.
Discrimination & Retaliation
Some examples of protected activity that pertain to discrimination law and Title VII are as follows:
- filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
- communicating with a supervisor or manager about employment discrimination, including harassment
- answering questions during an employer investigation of alleged harassment
- refusing to follow orders that would result in discrimination
- resisting sexual advances, or intervening to protect others
- requesting accommodation of a disability or for a religious practice
- asking managers or co-workers about salary information to uncover potentially discriminatory wages.
Under Title VII, plaintiffs who establish illegal retaliation are able to recover damages in the form of back pay, front pay, compensation for emotional distress, and punitive damages.
FLSA (Wage / Hour Laws) & Retaliation
Anti-retaliation laws exist beyond the discrimination context. The Fair Labor Standards Act is a federal law that governs overtime pay. And built into the FLSA is a provision that prohibits retaliation. In essence, the FLSA’s retaliation provision makes it illegal for an employer to retaliate against an employee for making a complaint about overtime pay. That applies to a formal lawsuit filed in court and to internal complaints made to human resources or a manager. In the FLSA context, courts have interpreted the concept of retaliation very broadly. Virtually any adverse action taken against an employee after that employee complains about wage theft can constitute illegal retaliation. Some examples from the case law:
- Firing an employee; demoting an employee; or withholding compensation already due;
- Reducing an employee’s work hours or assigning them a less favorable schedule;
- Evicting an employee who lived in corporate owned property;
- Contacting Immigration & Customs Enforcement about an employees status.
Federal law provides protection for certain whistleblowers in limited circumstances. But the most broadly applicable and frequently implicated whistleblower retaliation laws exist at the state level. Most states have either a statute that protects whistleblowers, or, recognize a common law (non-statutory) right to sue for retaliation against a whistleblower. In Florida, for instance, that law is the Florida Whistleblower Act. The FWA makes it illegal for a company to retaliate against an employee for reporting illegal conduct to the government, participating in a governmental investigation, or refusing to participate in unlawful conduct.
About Pollard PLLC
Based in Fort Lauderdale, Pollard PLLC is a law firm focused on employment and competition law. The firm has litigated hundreds of cases involving non-compete agreements, trade secrets, defamation, unpaid wages, discrimination, and more. The firm’s office can be reached at 954-332-2380.