- Course: Employment Law 101
- Module: Discrimination
- Lesson Type: Video
- Lesson Duration: 4:14
This section is on retaliation. We all instinctively want to retaliate if we’re harmed the instinct is for us to strike back. Or to do something that we believe is protective in nature. This is a great quote by Albert Camus. “Retaliation is related to nature and instinct, not to law. Law, by definition, cannot obey the same rules as nature.” So it's kind of understandable that retaliation is such a difficult thing for employers to dealt with, because a business is an artificial entity comprised of people who instinctively would probably retaliate. And we have to teach them and train them and talk to them about how not to and why. So that's part of what we're gonna talk about here.
Let's look at the legal definition of retaliation, and sort of how retaliation happens. There's actually three elements to retaliation. The first one is that the employee has to be engaged in a protected activity. The second one is that the employee you engage in that protected activity was then subjected to some sort of adverse employment action. And the third element deals with causation, in other words, that adverse employment action was caused by the employee engaging in the protected activity. So when we think about retaliation, from a legal perspective, we look at it in those three aspects to decide whether or not it's an actionable cause of action under the law.
So we have a protected activity that lead to an adverse employment action and the adverse employment action was caused by the protected activity. In defining protected activity, an employee is entitle to take action like a planning, whether it be formal or informal of anything that was illegal, discrimination or harassment, for example. They could be supporting somebody else's complaint and might be appearing as a witness or giving testimony in an investigation, things of that nature. Or it could be if they believe an order is discriminatory in nature or harassing, it could be actually refusing that order. So those are examples from the law of what a protected activity is.
What about adverse action, this one's kind of more difficult to pin down, the idea of an adverse action is something like termination or maybe a demotion or perhaps a loss of pay. We’re gonna talk little bit about this elements as we go through this particular segment.
It's important to note that not everything that’s unpleasant for the employee, is an adverse action. The business, the managers can discipline employees after they've made a complaint but it's very, very important that they be very clear that what they're disciplining is conduct that is contrary to policies or procedures and they're not disciplining differently or for the sake of discipline. In other words, it can't be perceived as just an excuse to pick on the employee. It needs to be very valid, well-documented, and clear discipline if you're going to undergo it.
Also, frequently in retaliation claims this happens. A employee is not happy about something, and they complained. And then other employees aren't pleased that they complained, and they kind of think of that employee as the tattletale and they don't treat that employee with the same respect or kindness. Well, that may or may not be retaliation. Generally, the law looks at that as too minimal to be retaliation because it's not necessarily an adverse action by the business. But a lot of employees don't know that and they certainly will bring a complaint because the work environment has changed after their claim. So these are things to think about.
Mark A. Addington, Esq. advises and advocates on behalf of businesses concerning Labor & Employment Law, Business Regulatory Compliance, Restrictive Covenants (Non-Competition, Non-Solicitation, and Confidentiality), Wage & Hour, Privacy, Technology,...Mark's Full Bio
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