Understanding the Role of Retaliation in Wrongful Termination Cases

And when you may have a retaliation claim

By Canaan Suitt, J.D. | Last updated on September 19, 2023 Featuring practical insights from contributing attorney Twila S. White

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Most employees in the United States work at will. This means that just as they can leave their job for any reason and at any time, their employer can terminate them for any reason—except unlawful reasons.

Of the many unlawful reasons that an employer could fire an employee, retaliation is the most commonly alleged, according to the Equal Employment Opportunity Commission (EEOC), a federal government agency that handles employment discrimination claims.

This article will briefly explain what retaliation is and what you can do if your employer has retaliated against you—including a former employer who wrongfully terminated you.

What is Employment Retaliation?

Retaliation occurs any time an employer takes an adverse employment action against an employee for engaging in “protected activities” such as:

  • Filing an employment discrimination complaint with a federal or state government agency;
  • Acting as a good faith whistleblower in reporting the employer’s illegal activity, such as discrimination, safety violations, or wage and hour violations.
  • Reporting sexual harassment to human resources or participating in an investigation of alleged sexual harassment
  • Refusing to engage in illegal activity or avoiding unwelcome sexual advances
  • Requesting reasonable accommodations for a disability or religious practices;
  • Asserting your rights as an employee.

“If an employer fires someone in retaliation for engaging in a protected activity—such as reporting a violation or complaining about something—that falls outside of the at-will employment provision,” explains Twila S. White, an employment law attorney in Hermosa Beach, California, who represents employees in a wide range of employment litigation.

An astute lawyer has to think: What else can I do to help this person get justice? When a case goes before a jury, the jury doesn’t see all the things that have been excluded. The jury has to work with whatever facts and causes of actions are before them. As long as you get a win, who cares? You don’t have to win on every single claim; you just have to win on one of them

Twila S. White

What Are Signs of Retaliation?

Retaliatory actions are any adverse action that an employer takes against an employee as punishment for engaging in a protected activity:

  • Demotion or transfer to a less desirable role in the company;
  • Failure to promote or unjustified negative performance reviews;
  • Heightened scrutiny or investigation;
  • Forcing the employee to go on leave;
  • Making the employee’s job harder by changing their schedule;
  • Spreading rumors about the employee or engaging in abusive behaviors;
  • Threatening to report the employee to the authorities;
  • Terminating the employee.

White notes that of all adverse employment actions, termination is the most adverse. Employers will claim a valid reason for the adverse action—such as poor performance or business needs—and it’s the employee’s burden to show that the employer actually fired them in retaliation using a wide range of evidence, from text messages to employment documents to emails.

Several federal laws provide protections against employment retaliation, including:

  • Title VII of the U.S. Civil Rights Act of 1964;
  • The Age Discrimination in Employment Act (ADEA);
  • The Americans with Disabilities Act (ADA); and
  • Equal Pay Act.

Depending on the nature of your retaliation claim and the statute under which you plan to take legal action, you’ll have to file a retaliation complaint with the appropriate government agency first.

For example, suppose your employer retaliated against you for acting as a whistleblower. In that case, you must file a complaint with the Department of Labor’s Occupational Safety and Health Administration (OSHA) before suing. Likewise, if you were retaliated against for reporting discrimination or sexual harassment under Title VII, you must file a complaint with the EEOC before getting the green light to sue.

Often, state laws provide employees with even stronger protections against discrimination, retaliation, and wrongful termination—as well as more robust damages. State laws typically have different procedures and requirements for legal action against employers.

White gives an example with reference to California law. “If you’re suing under Title VII, you have to exhaust your so-called administrative remedies by filing a claim with the EEOC. But usually, if you go to the EEOC first, the EEOC will cross-file that same complaint with your state agency. So you cover two bases at once—the federal level and state level. But if you go to the state level first, they don’t cross-file with EEOC. You have to do that separately,” she says.

Additionally, “Some statutes don’t even require administrative exhaustion. You have to look at the federal or state statute you’re suing under for specifics. For example, if you’re suing under a labor law or a health labor code section, there is typically no exhaustion required. However, there may be a caveat, particularly if you’re suing a governmental entity. With a governmental entity, certain tort claim requirements have to be met.”

The upshot of all this complexity is that if you’re planning to sue under federal or state law, it’s important to consult with an attorney who understands the legal requirements in your state. The worst thing you can do is have a good claim but miss a deadline or other technicality that bars you from recovering.

Is Retaliation a Ground for a Wrongful Termination Claim?

Yes. White explains that the same adverse employment action could violate multiple laws and give rise to multiple causes of action.

Say your employer discriminated against you through an adverse employment action. For example, they demoted you, failed to promote you, or put you on leave because of your membership in a protected class. You report this discriminatory action to your human resources department. In response, your employer fires you.

This series of events could give rise to three separate causes of action in the same lawsuit: a discrimination claim, a retaliation claim, and a wrongful termination claim.

Find a Lawyer with Experience in Wrongful Termination and Employment Law

“There are so many hurdles to retaliation and wrongful termination claims depending on who you’re suing and which statute you’re suing under,” says White. One of the best things that a wrongfully terminated employee can do is consult an employment law attorney for legal advice.

“The more experience the lawyer has, the more they can navigate through all the hurdles and caveats depending on who you’re suing and which statutes you’re suing under,” she says. “Sometimes, if administrative remedies aren’t met, a good lawyer can figure out if there are other statutes that the employee can sue under so that they can have access to justice.”

Sometimes, when a prospective client meets with an attorney, all the legal deadlines have passed. In those situations, “An astute lawyer has to think: Now that that’s water under the bridge, what else can I do to help this person get justice? Sometimes, we have to tell them there’s nothing we can do. However, when a case goes before a jury, the jury doesn’t see all the things that have been excluded. The jury has to work with whatever facts and causes of actions are before them. As long as you get a win, who cares? You don’t have to win on every single claim; you just have to win on one of them.”

If you’re considering an employment action to protect your legal rights as an employee following retaliation or discrimination, you can start your search for an experienced lawyer in your area using the Super Lawyers directory.

For additional information about this legal area, see our overviews of employment & labor law and wrongful termination.

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