The law recognizes that employees should not fear reprisal or retaliation when they make good faith complaints to their employer. Therefore, in addition to prohibiting unlawful discrimination, the anti-discrimination laws in existence also prohibit retaliation against those who engage in “protected activity” such as complaining about discrimination in the workplace. While “protected activity” is typically a good faith complaint made by an employee that they or someone else has been discriminated against or has been discriminated against based on an unlawful reason such as gender, pregnancy, age, race, religion, and/or disability, the term “protected activity” can also include other conduct that opposes discriminatory conduct. For instance, an individual can engage in “protected activity” by assisting an individual who filed a complaint of discrimination or participating in an investigation.
Unlawful retaliation can take many forms. It can occur where an employee is subject to adverse actions following engagement in protected activities which can include termination, demotion, failure to promote, failure to provide appropriate compensation, or the creation of a hostile work environment. However, unlawful retaliation can also take place in a variety of other ways that are intended to dissuade employees from making complaints, and can even continue after termination. For instance, a former employer may be liable for unlawful retaliation for unlawfully opposing unemployment benefits or from banning a former employee from its establishment. In certain circumstances, unlawful retaliation can also occur where an employee is retaliated against because a close personal friend or family member has lodged a complaint. Moreover, there may be circumstances in which unlawful retaliation occurs based on the employer’s perception that an individual issued a complaint, even if that perception is inaccurate. At Wigdor LLP, we have represented many individuals who have been subject to unlawful retaliation, and we have advocated for an increasingly expansive interpretation of the anti-retaliation laws.
Some of our larger settlements and verdicts have come in cases involving retaliatory action taken by an employer as a result of “protected activities,” and we have been at the forefront in using the law to expand the scope and definition retaliation and how it can be proven. One of our recent cases has already been cited over 100 times by other courts. Given the wide scope of conduct that can be considered unlawful retaliation, and the evolving area of retaliation law, you should speak with an attorney if you believe you may have been the victim of unlawful retaliation.