Discrimination |
April 20, 2017

San Francisco Discrimination Lawyers – How to Identify Retaliation in the Workplace

Discrimination lawyers in San Francisco explain how employees can recognize an employer’s unlawful retaliation

State and federal laws protect employees from retaliation for complaining about or reporting employment discrimination. The same laws protect employees who assist those who have been or are being subjected to discrimination. An employee in or near San Francisco who has been subjected to retaliation for any of those reasons should consult with the employment discrimination lawyers at San Francisco’s Minnis & Smallets.

Identifying retaliation is the first step in protecting employees who are affected by it. Here is some information that will help employees understand whether or not an employer’s actions might be retaliatory.

Protection Against Retaliation

retaliation in the workplaceLaws that prohibit employment discrimination would not be effective if employers were permitted to discourage employees from reporting discrimination, or to fire them for doing so.

For that reason, federal laws that prohibit discrimination on the basis of race, nationality, sex, disability, age, and religion also prohibit retaliation for engaging in protected activities. California laws that prohibit discrimination on those grounds, as well as on the basis of sexual orientation, gender identity, gender expression, and marital status, also prohibit retaliating against an employee for engaging in a protected activity.

Protected activities are activities that oppose workplace discrimination or that involve participation in legal proceedings concerning discrimination. To assure that employees can challenge workplace discrimination without fear of reprisal, the law protects employees from retaliation when they:

  • Complain to an employer about discrimination;
  • Refuse to obey an order to discriminate against another employee;
  • Resist sexual advances or intervene to protect other employees from unwanted sexual advances;
  • Request a reasonable accommodation of a disability or religious belief;
  • File a charge or a lawsuit that alleges workplace discrimination;
  • Help another employee to complain about workplace discrimination;
  • Take other reasonable steps to oppose workplace discrimination; or
  • Testify in a discrimination proceeding.

An act that opposes discrimination is protected if the employee acted in the good-faith belief that the employer engaged in unlawful discrimination. The employee is protected even if that good-faith belief turns out to be mistaken. A discrimination lawyer in San Francisco can help employees understand whether they engaged in protected activities.

Examples of Retaliation

Retaliation is any “materially adverse act” that an employer takes because an employee has engaged in a protected activity. An act is “materially adverse” if it might deter a reasonable employee from complaining about discrimination. A retaliatory act can meet that definition even if does not affect an employee’s pay or job status.

Retaliatory acts may or may not be related to work. Examples of work-related retaliatory acts include:

  • Termination
  • Demotion
  • Suspension
  • Reduction of hours or pay
  • Denial of a raise or promotion
  • Warnings or other disciplinary actions
  • Poor performance reviews
  • Transfer
  • Assignment of less desirable job duties or less responsibility
  • Workplace harassment
  • Closer scrutiny of the employee’s work
  • Acts of “workplace sabotage” for which the employee is blamed

Examples of retaliatory acts that are not related to work include:

  • Making disparaging remarks about the employee to other people
  • Falsely reporting the employee to government authorities
  • Threatening to take action against the employee’s immigration status
  • Bringing a lawsuit against the employee
  • Ending a business relationship with the employee’s spouse or relative

The key to deciding whether an action is retaliatory is whether the action (or the threat to take the action) would dissuade a reasonable employee from engaging in a protected activity. When there is doubt as to whether an employer’s action is retaliatory, an employee should seek advice from San Francisco discrimination lawyers.

Examples of Acts that Are Not Retaliatory

An employer’s action will probably not be regarded as retaliatory if it is so insignificant or unimportant that it would not deter a reasonable employee from engaging in protected activity. The leading Supreme Court case on retaliation refers to “petty slights, minor annoyances, and simple lack of good manners” as the kind of actions that will not usually support a retaliation claim.

Courts have found that, in specific instances, these actions were too trivial to be considered retaliatory:

  • A temporary transfer from an office to a cubicle that was consistent with an established office policy
  • Brief delays in reimbursing an employee for small payments of expenses
  • Exclusion from a lunch invitation

Keep in mind, however, that whether an act would likely deter an employee from engaging in a protected activity depends upon all the facts and circumstances. An act that might not be retaliatory in one context might be retaliatory in another. That’s why it is important to seek legal advice from an employment lawyer in San Francisco before deciding whether the law would view an employer’s conduct as retaliatory.

Proving Retaliation

Employers rarely say “I am giving you a poor performance review because you filed a discrimination claim against my business.” For that reason, retaliation is not always obvious. Employees should be concerned, however, if their employers’ treatment of them because notably more negative after the employee’s protected activity. Suspicious timing can be considered evidence of retaliation.

When an employee is concerned that he or she has been subjected to retaliation, a San Francisco discrimination attorney can help the employee decide whether the situation merits legal action or further investigation. To have discrimination lawyers in San Francisco review your potential retaliation claim, make an appointment with Minnis & Smallets by calling 1-415-551-0885. You can also share your concerns with us by submitting our online contact form.