Retaliation

Workplace Retaliation is Unlawful

Employers are prohibited from retaliating against an individual because of the individual’s participation in protected activity under law.

Private sector employers, and federal, state, and local government agency employers are prohibited from engaging in unlawful retaliation. Retaliation claims cover a broad scope of conduct.

Retaliation is prohibited under numerous federal civil rights laws and the Colorado Anti-Discrimination Act [CADA].

Retaliation charges were the most frequently filed charges with the Equal Employment Opportunity Commission [EEOC] in fiscal year 2016.

Persons Covered by Retaliation Law

Employees, former employees, and applicants are protected from retaliation.

Employers are prohibited from retaliating against a person within the “zone of interest” of the person who engaged in the protected activity. For example, an employer cannot retaliate against the employee who engaged in protected activity, i.e. filed a charge of discrimination, by discharging the person’s fiancé who works for the same employer.

Elements of Retaliation Claim

The recognized elements for a viable retaliation claim:

  • (1) Participation in Protected Activity.
    • Opposition. Protected activity includes opposing discrimination or conduct made unlawful by a civil rights law.

    • Participation. Protected activity consists of participation in a legal process concerning equal employment opportunity. Protected participation includes filing a charge of discrimination, assisting, testifying or participating in any investigation, litigation, or proceeding under the applicable employment law.

      For example, an employer may not retaliate against an employee because the employee served as witness in an employer-conducted investigation of a co-worker’s discrimination complaint.

  • (2) Materially Adverse Action by Employer.
    • A person claiming retaliation must show that the employer’s challenged action might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.

    • The significance of any given action depends on the context and particular circumstances of the challenged action and the surrounding circumstances.

  • (3) Casual connection between the employee’s protected activity and the employer’s alleged materially adverse action.
    • This precise causation standard applied to any retaliation claim depends on the specific law applied to the claim.

    • In general, this element requires a relationship between the employee’s protected activity and the employers’ action alleged to be retaliatory.

    • In evaluating a causal connection, factors for consideration may include the: (1) proximity between the protected activity and the employer’s action; (2) whether the employer has a legitimate reason for taking the challenged action or whether the employer’s alleged reasons are inconsistent, shifting, or implausible; (3) whether the employer has displayed a retaliatory motive in oral and written statements; and (4) whether the challenged action is conforms with the employer’s policies and practices.

Administrative Proceedings

A person seeking relief for retaliation under the majority of federal employment laws, i.e. Title VII of the Civil Rights Act of 1964, or the CADA, must file an administrative charge before filing a civil action in court. A charge of discrimination must be filed with the U.S. Equal Employment Opportunity Commission [EEOC] within 300 days of the retaliation. The aggrieved individual may also file a charge with the Colorado Civil Rights Division within 180 days of the last retaliatory action. The filing of a charge with either agency is deemed jointly filed with both agencies.

Conclusion

Murray Law welcomes the opportunity to provide advice, counsel, and legal representation to any individual who believes that she has been deprived of the right to be free from unlawful retaliation in employment. Please contact Steven Murray at 720-600-6642.

Resource

The Equal Employment Opportunity Commission [EEOC] provides guidance, explanation, and discussion concerning retaliation. See https://www.eeoc.gov/laws/types/retaliation.cfm

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