The problem with employment cases, from the plaintiff’s side, is that not every retaliation is an unlawful one. I have talked to dozens of employees who feel they have been retaliated against by their employer and either disciplined or terminated as a result. They were accused of doing something – assaulting a coworker, being late, making a mistake, complaining about unreasonable sales targets – and the list goes on and on. They all feel that what they have been accused of doing was not sufficiently serious, or wrong at all for that matter, to justify being fired. They’ve been wronged, and it feels unfair. The problem is that retaliation by an employer, whether the response is more measured like a suspension or demotion, or harsher like a firing, is not automatically unlawful just because it was retaliation, or a response, to something the employee did.
Whether the retaliation is actionable depends on whether the employee did something that is protected activity or not. Complaining about racial discrimination at the workplace to HR and then being fired would be unlawful retaliation. Asking to take time off for maternity leave under the Family and Medical Leave Act and then being fired would be unlawful retaliation. Refusing to defraud customers by inflating the sales price of your company's product in the sales contract and pocketing the difference, and then being fired for it, would be unlawful retaliation. On the other hand, if you were late and you got fired, that’s not actionable retaliation. If you complained that the sales targets were totally unattainable, and your boss decided to fire you, that’s not actionable retaliation. The difference is that in the last two situations, you were not engaged in any kind of protected activity, such as reporting discrimination, refusing to participate in violations of the law, or requesting rights you have as an employee under some law. However, there is hope for employees who feel wronged. Often when some move by the employer feels unfair, there is more to it than what meets the eye. So, if only women who are late have gotten fired, whereas the men in the same positions can stroll in at all times with no consequences, there may be discrimination afoot. Therefore, if it feels unfair, it is best to talk to an employment attorney who can help you explore if you have a claim for retaliation or have bad fortune but no real claim.
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