civil rights retaliation
This page is for general informational purposes only and should not be considered legal advice. Your situation may not fit the claim you think it would, but it may fit another. Only an attorney with comprehensive knowledge of employment law can tell you whether you have a claim. You should always consult with an attorney before taking or refraining from taking any action in your individual situation.
Retaliation rights
What laws govern workplace retaliation?
Workplace retaliation in violation of civil rights statutes is prohibited under federal law by Title VII of the Civil Rights Act and under Michigan law by the Elliot-Larsen Civil Rights Act.
Other federal statues such as the American Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and the Age Discrimination in Employment Act (ADEA) also have similar prohibitions against retaliation.
What types of retaliation are prohibited?
The civil rights statutes prohibit discrimination based on certain protected characteristics. In order to encourage its enforcement, the statutes also contain a provision prohibiting retaliation for certain conduct enumerated by the statute, referred to as protected activities. In order to have a claim for workplace retaliation under these statutes, the retaliation must be based on a protected activity.
There are two main types of protected activity under these statutes.
The first is opposing or reporting a violation of the act, which includes opposing or reporting discrimination or discriminatory harassment. For instance, an employer is almost always prohibited from retaliating against an employee for filing a discrimination complaint made in good faith with human resources. In the sexual harassment context, some courts have even held that telling a sexual harasser to stop constitutes protected activity.
However, if the employee complains to human resources that he or she is being discriminated against because they drive a green car, for reasons more fully explained below, the employee is not opposing a violation of the civil rights acts and therefore the prohibition on retaliation does not apply to this situation.
The second type of protected activity for which retaliation is prohibited is participating in an investigation related to a charge of a violation of the act, which includes a charge of discrimination or harassment. In layman’s terms, an employer may not retaliate against you for serving as a witness or providing other evidence in support of another’s discrimination or harassment claim.
Are any other types of types of retaliation prohibited?
Yes. This page discusses retaliation in violation of the civil rights statutes. However, there are other types of retaliation that may be prohibited.
One example is whistleblower retaliation. A whistleblower retaliation claim arises when an employer retaliates against an employee for reporting a violation of the law to a public body. You can find more information on whistleblower protection and claims on our Know Your Rights, Whistleblower page.
While retaliation in violation of the civil rights statute or whistleblower statutes are the two main laws prohibiting retaliation in the employment context, there is also what is referred to as retaliation in violation of public policy. A retaliation in violation of public policy claim arises in three situations: (1) “the employee is discharged in violation of an explicit legislative statement prohibiting discharge of employees who act in accordance with a statutory right or duty”; (2) “the employee is discharged for the failure or refusal to violate the law in the course of employment”; or (3) “the employee is discharged for exercising a right conferred by a well-established legislative enactment.”
Lastly, there may be additional, specific statutes that prohibit retaliation for the type of conduct you engage in. For example, the statute relating to MiOSHA contains a provision prohibiting retaliation for reporting a violation. Many statutes contain similar provisions.
Is retaliation based on personality conflict prohibited?
No. A supervisor is not prohibited by law from retaliating against an employee simply because they do not like them. However, if the supervisor does not like the employee because of the employee’s race, sex, religion, or another protected class, there may be a discrimination claim. In addition, if the employer is retaliating against the employee for opposing a violation of law, there may be a retaliation claim under another statute. One such example is the whistleblower statute, which prohibits retaliation for reporting a violation of the law to a public body.
What acts of retaliation are prohibited?
In order to have a viable workplace retaliation claim, courts require the retaliation to be materially adverse. The courts apply a more lenient standard to determine whether an action is materially adverse relative to a discrimination claim.
In the retaliation context an action is materially adverse if it would likely dissuade a reasonable person from making a charge of discrimination. This is a somewhat subjective standard and whether an action is materially adverse may vary depending on the circumstances.
Examples of retaliatory actions that are almost always prohibited include: termination, demotion, decrease in compensation, and significantly altered job responsibilities.
Retaliatory actions that may be materially adverse, depending on the circumstances, including transfers and denial of training opportunities.
However, minor inconveniences and petty slights will not constitute an adverse action and therefore are not prohibited under the retaliation statute, or at least are not actionable.
What can I do if I am being retaliated against?
You generally have three options if you are the victim of retaliation in violation of the civil rights statutes.
First, if your employer has a human resources department or other related entity you can report the retaliation to them.
Second, you can file a complaint with the Equal Employment Opportunity Commission (EEOC) or the Michigan Department of Civil Rights. These agencies will investigate your claim for free. However, estimates are that the EEOC only brings charges in about 2% of its cases.
Your third option is contact an attorney and pursue a retaliation lawsuit. Fett Law has over 35 years of experience handling retaliation claims and has obtained countless notable recoveries for our clients, including $438,000 jury verdict for a prison warden who was demoted for opposing the sexual harassment of a co-worker by an MDOC administrator. Contact us today and we would be happy to review your case free of charge. Learn more about our firm by visiting our homepage.
Additional Resources
do i have a workplace retaliation CLAIM?
Under both Federal and/or State law, it is unlawful to retaliate against an employee who opposes, or participates in an investigation of, a violation of the civil rights statutes.
For an employee to prevail on a retaliation claim, an employee must be able to prove four facts, or what the law calls elements: (1) the employee engaged in protected activity; (2) the employer knew about the protected activity; (3) the employer took an adverse action against the employee; and (4) there is a causal relationship between the protected activity and the adverse action.
In layman’s terms, this usually means that an employee bringing a retaliation claim under the civil rights statutes must prove that the employer retaliated against the employee for opposing discrimination or harassment, or for participating in an investigation of a charge of discrimination or harassment, although, as explained below, the legal framework is much more complicated.
1. Protected Activity
The first element of a retaliation claim is that the employee engaged in a protected activity. As defined by statute, protected activity includes opposing any practice of discrimination based on the protected characteristics enumerated above, or making a charge, testifying, assisting, or otherwise participating in any manner in an investigation, proceeding or hearing. These two types of enumerated protected activity are referred to as opposition clause retaliation claims and participation clause retaliation claims.
opposition clause retaliation
Retaliation claims under the opposition clause arise when the protected activity is opposing discrimination and the employer retaliates against the employee for the opposition. Courts generally require the employee clearly convey an opposition to discrimination, and vague charges that amount to dissatisfaction with employment will not suffice. Generally, as long as the employee has a good faith belief that discrimination is occurring, statements to anyone, including management or unions, can suffice. Moreover, an employee can oppose discrimination by encouraging a co-worker to make a complaint.
Examples of protected activity under the opposition clause include making a discrimination complaint to human resources or otherwise conveying opposition to discrimination to a supervisor.
participation clause retaliation
Retaliation claims under the participation clause arise when the employee participates in an investigation of a discrimination charge, and the employer retaliates against the employee because of the participation. This type of retaliation claim usually arises when an employee serves as a witness or provides evidence to support a co-worker’s claim of discrimination.
2. Employer Knew of Protected Activity
The requirement that the employer knew about the protected activity seems somewhat self-explanatory. However, this requirement imposes the burden on the employee to demonstrate that the decisionmaker, who made the decision to take the adverse action, as detailed below, knew of the protected activity. After all, if the person who made the decision to take the adverse action did not know of the protected activity, the adverse action could not have been in retaliation for the protected activity.
3. Adverse Action
An employee cannot bring a retaliation claim for all forms of retaliation. Rather, the retaliation must be “materially adverse.” However, both federal and state courts interpret this requirement broadly, holding that an adverse action under the retaliation statute requires only that the retaliation be enough to dissuade a reasonable employee from making a charge of discrimination or participating in an investigation thereof. Notably, this legal standard is much more lenient than that of the adverse action requirement for discrimination claims. Thus, the forms of retaliation that are actionable are endless. Examples of adverse actions include:
- Termination
- Demotion
- Denial of Benefits
- Frivolous Discipline
- Transfers
- Poor Performance Reviews
Trivial slights and minor inconveniences will not suffice as materially adverse actions. However, although the law is not clearly established on the theory, there may be a claim for retaliatory harassment. This means that if otherwise “trivial slights and minor inconveniences” occur often enough, the retaliatory harassment could become materially adverse, and thus actionable.
4. Causation
The last elements of a retaliation claim is causation. This simply means the employee must demonstrate that the employer took the adverse action because the employee engaged in protected activity. Evidence that the retaliation was the motive can take various forms.
Temporal proximity, or when the protected activity occurred relative to the retaliation, is often a key consideration. When the retaliation occurs shortly after the employee engaged in protected activity, the temporal proximity is strong evidence of retaliation. Conversely, if a long period of time accrues between the protected activity and the retaliation courts may find there is not enough evidence to support a retaliation claim.
Direct statements of intent to retaliate are always strong evidence that the protected activity was the motive for the retaliation. This can include statements from a decisionmaker such as “I am going to get them” or “no one crosses me.”
A pattern of retaliation against other employees can also be evidence that the motive for the retaliation was the protected activity.
This is not an exhaustive list, and a successful retaliation claim often includes various forms of evidence on causation.
Do I Have a Workplace Retaliation LAWSUIT?
In summary, whether you have a viable workplace retaliation claim under the civil rights statutes depends on whether you can demonstrate that your employer retaliated against you for engaging in protected activity.
However, even if you can meet the legal requirements for a workplace retaliation claim, the employer may have defenses that you would have to overcome. Additionally, in order to have a viable workplace retaliation lawsuit, the damages which you may recover must justify the time and expense of pursuing a workplace retaliation lawsuit. To learn more about what your workplace retaliation lawsuit may be worth, visit our Know Your Rights, Case Valuation page.
The law is complicated. Even if you do not think your situation fits within the above framework, there may be other causes of action available to you. The only way to know whether you have a claim is to have an employment attorney review the facts of your case and relevant law. If you believe you have been the victim of workplace retaliation, contact us today and we would be happy to review your case free of charge. You can get a jump start on the process by completing our free case evaluation form.