The urge to retaliate is as old as humanity itself. The idea of “tit-for-tat” is inherent in the fabric of our society. The idea that “if you hurt me, I’ll hurt you” plays itself out every day. But not all workplace retaliation is unlawful.
To prove a case for unlawful retaliation, a worker must show that (1) his employer took a materially adverse action against him (2) because (3) he engaged in a protected activity. Let’s break this down a little more.
First, the worker must show his or her employer took a materially adverse action against him or her. A materially adverse action includes not only the adverse actions described on the Discrimination page (discharge, denial of promotion, refusal to hire, denial of job benefits, demotion or suspension), but also anything else that might discourage a worker from complaining about discrimination in the future. To make this determination, a judge looks at the whole situation. Some examples include: work-related threats, warnings, reprimands, transfers, negative evaluations or transfers to less prestigious or desirable work or work locations.
Second, the worker must show that the materially adverse action was caused by his or her protected activity. To show this, the worker must prove that the employer would not have taken the same action if the worker had not performed the protected activity. It doesn’t have to be the only reason an employer took the materially adverse action, but it has to have contributed to his motivation.
Lastly, the worker must show he was engaged in a protected activity. A worker is protected when he makes a charge of discrimination with the appropriate agency, and when he testifies, assists or participates in any manner in the agency’s investigation of a discrimination lawsuit. A worker is also protected if he opposes unlawful discrimination or retaliation. The worker’s opposition must be reasonable. A common type of reasonable opposition is reporting unlawful discrimination to the human resources department or to a manager. Examples of unreasonable opposition include: filing obviously false complaints of discrimination, badgering a co-worker for a witness statement, coercing a witness to change his statement and threatening violence. Even if the reported activity is later determined to be lawful, the worker is still protected if he acted with a reasonable good-faith belief that the conduct was unlawful discrimination or retaliation.
If you have been the victim of unlawful retaliation for participating in a discrimination claim or opposing unlawful discrimination or retaliation in Kennewick, WA, call employment attorney Adam R. Pechtel at (509) 586-3091 right away.