Laws prohibit punishing employees for asserting their rights to be free from employment discrimination including harassment. Asserting these rights, meaning reporting discrimination or harassment and participating in any investigation or or lawsuit regarding the discrimination or harassment, is considered engaging in a protected activity.
It is unlawful to retaliate against applicants or employees for any of the following protected activities:
filing or being a witness in an EEOC 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
Both federal and state laws protect employees from being retaliated against by their employers for engaging in protected activities.
Generally, before you can file a lawsuit alleging retaliation you must file a Charge with the Equal Employment Opportunity Commission (EEOC) or the Florida Commission on Human Relations (FCHR). This is referred to as exhausting the administrative requirement. Because there are time limits on how long you can wait to notify the EEOC or FCHR of your claim of retaliation, it is important to call an attorney as soon as possible to discuss whether you have a claim.
Compensatory damages pay for out-of-pocket expenses caused by the retaliation (such as costs associated with a job search or medical expenses) and compensate for any emotional harm suffered (such as mental anguish, inconvenience, or loss of enjoyment of life).
Back pay and front pay may be awarded. Back pay is money for lost wages and benefits up until the date of the resolution of the case. Front pay is money for lost wages and benefits going forward.
Punitive damages may be awarded to punish an employer who has committed an especially malicious or reckless act of retaliation.
Finally, the court may award attorney's fees and costs.
Q. Can I have a retaliation claim if I haven’t been fired or demoted?
A. Yes. When we think of retaliation we often think of firing or demoting a person. However, retaliation can happen by harassment. A person can be harassed actively, such as by being reprimanded and criticized without reason in front of others or by being given additional unwanted duties, or more passively by being isolated or ostracized from other employees.
Q. I complained to HR about my manager sexually harassing women in my department, and now I’ve been moved to a different department, which I consider a demotion. How do I know if this was retaliation?
A. If there is a connection between your protected activity, in this case reporting the harassment, and your move, you may have a claim. It is rare that an employer will admit to retaliating. Other evidence showing that the motive for the move was retaliatory could be a close temporal connection between your complaint and the move, if others who did not complain were not moved or even considered to be moved, if the employer did not investigate your complaint, or if the explanation for the move was nonsensical.
Q. How can I prove that I complained about discrimination when I only complained to my manager face to face and never submitted a written complaint?
A. While a written complaint reporting discrimination would be great evidence that you engaged in a protected activity, verbal reporting or complaining is a protected activity as well. You can prove that you engaged in that protected activity simply by saying so. Your word, or testimony, in a civil case is evidence, and ultimately, should your case go to trial, if the jury believes you, you do not need any other evidence of that which you say happened.
Not everyone wants the same resolution once he or she has suffered retaliation in the workplace. For that reason, there are several avenues the firm can help you pursue. You may be suffering from retaliatory harassment, have not yet been fired, and you want to keep your job. It can be empowering to have an attorney assist you in raising the issue with your employer and getting the harassment to stop. If you have already been fired, you may want to get your job back, or, you may feel that there is no going back and you must vindicate your rights in court. Whatever your situation, the solution can be tailor-made to suit your needs and goals.