What is Retaliation?
Your questions about workers’ rights, answered
Workplace retaliation can mean losing out on a promotion, receiving less pay, or even losing your job. But what is retaliation?
Employers cannot punish you for engaging in a protected activity. Employment laws protect your rights if you face retaliation at work. However, only certain actions meet the definition for retaliation.
Our FAQ explains what is retaliation and provides information on how to prove retaliation at work and how to sue for retaliation.
What is considered retaliation in the workplace?
Workplace retaliation occurs when an employer punishes an employee for complaining about discrimination or harassment, filing a complaint about wage theft, or acting as a whistleblower. Employers cannot fire employees for engaging in protected activities, which includes protecting their rights under employment laws.
How do you prove retaliation in the workplace?
Employees can prove retaliation by keeping detailed records of their interactions with supervisors and HR. If a company fires an employee shortly after the employee complains about employment violations, acts as a whistleblower, or participates in an EEOC investigation, the employee can make a case that the firing qualifies as retaliation.
What are signs of retaliation in the workplace?
Workers can legally participate in certain protected activities, including filing internal or external complaints about discrimination or sexual harassment, acting as a witness in an investigation, or reporting violations of minimum wage or overtime laws. Signs of retaliation include firing people who engage in protected activities, selectively denying raises, and giving poor performance reviews to employees with a record of positive reviews right after the employee engages in a protected activity.
How do I stop retaliation at work?
Employees can prevent retaliation by documenting their protected activities and keeping records showing their performance reviews and conversations with their supervisor or HR about protected activities. By knowing their rights, victims of retaliation can also recover lost wages, front pay, and damages by filing a lawsuit.
How do you deal with retaliation at work?
Documenting retaliation is the best way to deal with it. Employees should keep records of interactions with their supervisors or HR that may prove retaliation, as well as records of their protected activities. Contact an employment lawyer for a free consultation if you have been the victim of retaliation.
Can you sue an employer for creating a hostile work environment?
Yes, employees can sue their employer for creating a hostile work environment. Employers are automatically liable for harassment from a supervisor if the employer did not try to prevent or correct the harassing behavior. Employers may also be liable for a hostile work environment created by coworkers, independent contractors, or customers. Contact an employment lawyer for a free consultation to learn whether you have a hostile work environment case.
What is considered a hostile environment in the workplace?
If harassment targeting a particular race, gender, religion, or other protected characteristic makes it difficult for employees to work, this may qualify as a hostile work environment. Under federal law, the harassment must be severe or pervasive. New York City defines a hostile work environment as harassment that rises above a petty slight or a trivial inconvenience.
How do you prove retaliation?
Employees can prove retaliation by documenting their protected activities and any retaliatory actions by a supervisor. This can include being fired, being denied a promotion or demoted, or losing pay or benefits. If the retaliatory action came after a protected action, you may be able to prove that it violated the law.
What is a toxic work environment?
A toxic work environment can mean harassment from supervisors, co-workers, or contract workers that creates an uncomfortable workplace. Employers have a responsibility to prevent a toxic work environment, and employees have the right to sue because of a toxic work environment. New York City defines a hostile work environment as harassment that goes beyond a petty slight or a trivial inconvenience.
Can you sue your employer for emotional distress?
Yes, you may be able to sue your employer for causing emotional distress. If a supervisor caused emotional distress or a co-worker recklessly or intentionally inflicted emotional distress, you may have a case. Contact an employment lawyer for a free consultation to learn whether you can file a lawsuit.
What is a retaliation lawsuit?
A retaliation lawsuit falls under employment law, and it means suing your employer for retaliating against you for protected activities. This can include being fired after complaining about sexual harassment, receiving a pay cut after acting as a whistleblower, or being denied tenure for testifying in a discrimination investigation against your employer.
Can you sue your employer for retaliation?
Yes, you can sue your employer for retaliation. If you engage in a protected activity, such as filing a complaint about discrimination, acting as a witness in an EEOC investigation, or acting as a whistleblower, your employer cannot retaliate against you. If you have been the victim of retaliation, you can file a lawsuit against your employer to recover lost wages and for emotional distress.
Can you sue your employer for stress?
Yes, you may be able to sue your employer for stress caused by discrimination, sexual harassment, or retaliation. If you file suit after your employer violates your rights, you can request emotional distress compensation as part of the settlement, which can compensate you for stress or other emotional distress.
What is a retaliation case?
A retaliation case sues an employer if they violate an employee’s legal rights. For example, employees can sue if their employer fires them after complaining about sexual harassment or acting as a whistleblower. Employers can file a retaliation lawsuit if they receive unfavorable treatment after engaging in a legally protected activity.
What is EEOC Retaliation?
The EEOC investigates retaliation such as punishing job applicants or employees for protecting their rights. These protected activities include filing an EEOC complaint, informing a supervisor about discrimination or harassment, requesting accommodation for a disability, or refusing to follow discriminatory orders. Victims of retaliation can file a complaint with the EEOC.
What kind of damages are emotional distress?
Emotional distress damages compensate an employee for the pain and suffering caused by illegal employer actions. For example, employees may suffer from anxiety because of workplace sexual harassment or a hostile work environment. Victims of retaliation may also receive emotional distress damages.
What is an emotional distress lawsuit about?
During an employment lawsuit, employees can ask for compensation for their emotional distress. For example, victims of retaliation, a hostile work environment, or harassment can receive monetary compensation for their pain and suffering. An employment lawyer can help you file an emotional distress lawsuit.
What is the average settlement for a discrimination lawsuit?
The settlement for a discrimination lawsuit varies depending on the facts of the case. In the districts around New York City, the average employment discrimination award for pain and suffering was $200,000, while the average award for punitive damages was $460,000, according to a study by Professor Vivian Berger. The settlement amount may vary depending on the facts of the case.
What is a legally protected activity?
Legally protected activities include filing a complaint about harassment or discrimination, acting as a witness in an investigation, or answering questions during a company’s internal investigation. Employees are also legally protected when they refuse to follow discriminatory orders, act as a whistleblower, or complain about wage theft. Employers cannot retaliate against employees for legally protected activities.
Can I sue for mental anguish?
Yes, you can file an employment lawsuit for mental anguish, if your employer caused emotional distress because of illegal activities. For example, if your employer fired you for complaining about wage theft, you can file a lawsuit requesting compensation for your mental anguish. Bringing supporting documentation from a doctor or therapist can help prove your case.
Can you sue for pain and suffering?
Yes, you can file an employment lawsuit for pain and suffering. If your employer violated your rights, you may legally recover money to compensate for emotional distress. For example, if you resisted your supervisor’s sexual advances and he fired you, you can sue for retaliation, sexual harassment, and pain and suffering.
How long does an employment lawsuit take?
An employment lawsuit may take several months or several years, depending on the facts of the case. Some cases may end more quickly if the employer chooses to settle, but litigation may require months or years. Contact an employment lawyer to learn more about how long your specific case may take.
Can you sue someone for emotional pain and suffering?
Yes, you can sue a supervisor or employer for emotional pain and suffering caused by their illegal actions. For example, if a supervisor pressures you with sexual advances and fires you for rejecting them, you can file a suit for retaliation and ask for monetary compensation for your emotional pain and suffering.
How do you prove discrimination in the workplace?
You can prove discrimination in the workplace by keeping a log of any discriminatory behavior, copies of emails that show discrimination, and records of conversations with your supervisor or HR about the discrimination. It’s also important to keep copies showing positive performance evaluations.
How do you calculate pain and suffering?
In an employment law case, juries award pain and suffering based on the specifics of the case. These jury awards take into consideration the severity of the emotional distress, medical records or documentation of pain and suffering, and testimony presented during the case. An employment lawyer can provide additional information.
What types of retaliation are illegal in New York?
In New York, employers cannot fire, demote, or withhold pay or benefits from an employee who engaged in a protected activity. This includes filing a complaint about discrimination or harassment, acting as a whistleblower, or participating in an investigation into corporate wrongdoing. Any unfavorable treatment after a protected activity may qualify as retaliation.
What is NY Labor Law 215?
NY Labor Law 215 states that employers cannot fire, penalize, or retaliate against an employee for complaining about a possible labor law violation to their employer or the Labor Department, providing information to the Labor Department, or testifying in an investigation or case. Employees are also legally protected when exercising any right under NY Labor Law.
What is NY Labor Law 741?
NY Labor Law 740 and 741 protect whistleblowers from retaliation. Under the law, employers cannot retaliate against whistleblowers for reporting suspected illegal activity, including those that pose a substantial and specific danger to public health and safety or a significant threat to a medical patient. Whistleblowers can file a lawsuit if their employer retaliates against them.
What to do about workplace retaliation?
Victims of workplace retaliation should contact an employment lawyer for a consultation. Some retaliation statutes require victims to file within a certain amount of time (as little at 30 days), so it’s important to reach out to a lawyer as soon as possible.
In New York, Charles Joseph offers free, confidential consultations to victims of retaliation. Charles Joseph brings over two decades of experience as an employment lawyer and founder of Joseph & Kirschenbaum, a firm that has recovered over $140 million for clients.
Learn more about retaliation protections, how to file a claim, and damages.