Blog

By: Kimberly Stephens

A lot can go wrong when a dispute arises between an employee (or former employee) and his/her employer (or former employer). Even more can go wrong if this dispute reaches the public.

Many employees avoid confronting or reporting their employer regarding a work-related issue out of fear of retaliation. Merriam-Webster defines “retaliate” to mean to get revenge.

Sometimes, employees avoid making discrimination or sexual harassment complaints or participating in workplace investigations because it is believed that the reporting employee will ultimately be punished, or essentially retaliated against. However, an employee cannot be punished by his/her employer solely for making a complaint, participating in a workplace investigation or even participating in a lawsuit.

Although retaliation may be done discretely enough, it is forbidden. In fact, retaliation is forbidden when it comes to any aspect of employment. As explained by the U.S. Equal Employment Opportunity Commission (EEOC), retaliation is forbidden when it comes to hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

An action is considered retaliation when the employer takes an adverse employment action against the employee.  However, such action must be materially adverse. The United States Supreme Court has considered several factors when considering whether an employment action is materially adverse: whether employment was terminated, whether the employee was demoted, received a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.

Overall, an employment problem or concern cannot be addressed and potentially corrected without the problem or concern first being reported. It is therefore important to remember that an employer cannot retaliate against an employee for reporting discrimination or sexual harassment, making a complaint, participating in a workplace investigation or bringing a lawsuit.