A practical guide detailing next steps, including documentation steps, protected activity, escalation paths, and red flags.
It’s time to speak up
There is no place for discrimination or harassment of any kind in the workplace. If you have experienced discrimination – whether it be based on age, disability, gender, pregnancy, race, sexual orientation, or religion – you should report such behavior to your company’s HR department. But what happens if you report discrimination, harassment, wage violations, unsafe conduct, or another unlawful workplace concern to HR and you notice a shift in your workplace? Perhaps you have received a demotion or even been terminated. Unfortunately, this is not entirely uncommon, and it could mean you are experiencing retaliation.
Speaking up should not lead to retaliation
If you are in the unfortunate position of having to report unlawful misconduct to HR, you should first know that you are protected. If, after you have raised concerns about workplace misconduct, you experience an adverse employment action on behalf of company management, that is considered workplace retaliation. An “adverse action” could, of course, mean termination, but other examples include reduction in responsibilities or pay, refusal to promote, constructing a hostile work environment, or a disadvantageous transfer. Even more subtle actions like exclusion from meetings and projects or increased micromanagement may be signs of retaliation. Retaliation after you have been terminated is also unlawful.
If your employer subjects you to some form of punishment after engaging in legally protected activities, such as reporting harassment, requesting accommodation, or whistleblowing, they could be retaliating against you. It is unlawful for an employer to retaliate against an employee for participating in a “protected activity,” even if the employee did not personally experience discrimination or harassment.
If you believe your employer has retaliated against you after sharing a complaint, you typically do not need to prove that the underlying discrimination was per se unlawful, but you do need to have had a reasonable, good faith belief that it was.
What to do if you’ve experienced retaliation after reporting to HR
If, after reporting misconduct to HR, you experience retaliation, you should consider contacting a lawyer. A lawyer can give you advice as to whether and how you should be documenting your experience. A lawyer can advise with respect to whether and how you should be saving relevant documents, including inappropriate texts, performance reviews, employee handbooks, etc. A lawyer can also advise you with respect to methods of preservation, including whether and how to record or otherwise document examples of the workplace discrimination, harassment or retaliation.
In the meantime, things should be “business as usual” around your workplace. Maintain your commitment to your responsibilities – avoid any tendencies to neglect your work. Maintain polite and open communication with HR and management and once you have retained an attorney, check with them before discussing the matter with anyone. Business operations should continue as usual; however, all requests and documents related to the legal matter must be communicated through your attorney.
When you’re ready to contact an attorney
Step 1: Create a timeline of events. When you speak with an attorney, it’s helpful to have a chronology of what happened and who was involved in the events that prompted you to seek legal help.
Step 2: Reach out to an attorney. But remember! Only contact us using a personal phone, computer, network, or email address.
Step 3: Save everything. Do not destroy or erase any documents or information that may affect your case. This includes handbooks, policies, emails, texts, and screenshots.
Step 4: Jog your memory. Reference your diary or calendar showing events and meetings to help you remember what happened and when.
How we can help
If you believe that your report of workplace misconduct to HR resulted in retaliation against you, you should speak with an experienced retaliation attorney. Wigdor has extensive expertise with all facets of employment law, including retaliation, and will be able to both explain your rights and walk you through your options.
Reach out to us at contact@wigdorlaw.com to see how we can work together.