An Employee May Maintain a Retaliation Claim Even if There Was No Underlying Discrimination

Elements of a Retaliation Claim

An employee who feels that he or she has been subjected to discrimination (including being subjected to a hostile work environment related to sexual harassment) may be hesitant to complain to a supervisor or Human Resources out of fear of retaliation.  However, the employment laws provide protections to employees who complain of discrimination.  To prove a cause of action for retaliation, an employee must show that (1) he or she engaged in a protected activity, (2) his or her employer was aware of the protected activity, (3) the employer took an adverse employment action against him or her, and (4) a causal connection exists between the adverse action and the protected activity.  
An employee may assume that to maintain a claim for retaliation that he or she must show that he or she actually experienced discrimination.  However, an employee does not need to prove the underlying discrimination in connection with a claim for retaliation.  Instead, the employee only needs to have a “good faith, reasonable belief” that he or she experienced discrimination.  In other words, an employee is protected for making a complaint even if, under the law, he or she did not experience discrimination.  

When is a Complaint Considered a “Protected Activity”?

As stated above, an employee needs to engage in a “protected activity” to be entitled to protections from retaliation.  Under the law, “protected activity” is an “action taken to protest or oppose statutorily prohibited discrimination.” Protected activities include, but are not limited to, complaining of discrimination to Human Resources, a supervisor, or a management-level employee, expressing support for a coworker who has filed formal charges, and rejecting the sexual advances of a supervisor.  Additionally, an employee does not have to make a formal complaint of discrimination as informal complaints such as making verbal complaints to a supervisor also qualify as protected activity. 

If you have been retaliated against at work, we would be happy to speak with you about your rights and answer any questions you may have.