Retaliation – Illegal vs. Unfair

Categories: blog

There are many people who have experienced retaliation in the workplace for being a whistleblower. However, important analysis must be done to determine if that retaliation was illegal or only unfair. While this article is meant to provide some clarity to these issues, this is not substitution for a consultation with one of our attorneys who can fully assess what you have experienced.

Generally, retaliation occurs when an individual faces negative treatment after raising a complaint or concern about an issue in the workplace. This negative treatment can range from minor slights (like not getting invited to casual lunches) or significant events, up to and including termination. However, not all retaliation is illegal retaliation.

For example, Sandra complains to HR that her manager, Steve, stinks up the break room when he microwaves his leftover seafood for lunch. As a result, Sandra doesn’t receive as many favorable shifts and her hours are reduced. Assuming that this is the full set of facts, Sandra has, in fact, been retaliated against by Steve and, while it is certainly unfair, it is not illegal. What we mean by “full set of facts” is, most of the time, an employee does not realize other facts may be at play when they receive unfavorable treatment. For example, Sandra may not realize that Tom, Dick, and Harry have also complained about Steve’s fishy-smelling lunch; however, they have continued to receive favorable shifts and their hours have not been reduced. Therefore, Steve accepts the complaints when they come from his male subordinates, but not from Sandra who is a female. This surpasses the unfair retaliation and becomes illegal discrimination. However, Sandra is unlikely to make this connection absent meeting with an attorney and asking the right questions.

Alternatively, Renee complains to HR that she was told not to consider any women for an upcoming position because the company’s clients relate better to men. As a result of this complaint, she is demoted with a cut in pay and her duty of interviewing prospective employees is given to someone else. Again, assuming that this is the totality of the facts, Renee has also been retaliated against, but in this example, it is illegal.

The difference is in the nature of what is being complained about. In order for illegal retaliation to occur, once must suffer an adverse employment action based on a complaint raised about a violation of a law, rule or regulation, not simply a company policy. So, while it may be an unwritten rule of courtesy in Sandra’s workplace to not have overly smelly lunches at work, there’s no law against it. However, there are laws against gender discrimination, which it appears Renee complained about, so she would have a retaliation claim.

These are obviously very simple examples meant to illustrate otherwise complicated legal matters. Most employees experience a scenario which is far more multi-faceted than those presented here, which is why it is imperative to meet with an attorney so that your entire situation can be analyzed and a determination can be made as to whether or not the retaliation you were subjected to was also illegal retaliation. Just like in Sandra’s situation, simply because the complaint itself would not be protected under the law, Steve’s gender-based response is illegal. For this reason, we advise you contact Wilson McCoy, P.A. if you feel you have been retaliated against and would like to explore the details of your case. Our attorneys are skilled and experienced in identifying issues where other may not see.