Finding the courage to oppose discrimination at your job can be hard. To do that with the threat of being fired or demoted hanging over you can make even the most courageous employee reconsider whether they should speak up. Unfortunately, it’s not uncommon for an employer to retaliate against an employee who reports or speaks out against discrimination at their job. That’s why anti-discrimination laws like the federal Civil Rights Act and the Americans with Disabilities Act and the New York State Human Rights Law have built in protections for people who report discrimination in the workplace.

So how do you know if you’ve been wrongfully retaliated against at work and what can you do about it? In this posting, we’ll talk about some of the legal protections against retaliation as well as your rights and legal options if you believe you’ve been retaliated against. If you’d like to talk about your own retaliation case, please contact us. We have decades of experience helping victims of employment discrimination and retaliation recover damages and other relief from their employers.

What Is Retaliation by My Employer?

You likely know that it is against the law for an employer to take adverse action against an employee based on certain characteristics like gender, age, race or religion. Many of the same laws that protect individuals from workplace discrimination also protect employees from retaliation for opposing unlawful discrimination. We’ve talked before about what is retaliation in the context of a sexual harassment lawsuit, but the idea is similar across any type of discrimination claim. Generally, in order to demonstrate you’ve been retaliated against at work, you must show three things:

1. You are a covered individual under the law,
2. You engaged in a protected activity, and
3. Your employer took some adverse employment action against you because of that activity.

Let’s take a look at each of these elements in more detail.

Who Are Covered Individuals?

The protection against retaliation given by federal and New York anti-discrimination laws applies not only to the employee who claims they’ve been discriminated against but anyone who may participate in a discrimination investigation or proceeding. So, even if you’re a witness to a discrimination case, you are protected under the law. The protections against retaliation in anti-discrimination laws apply only to individuals taking part in an investigation or claim of discrimination that is covered under that law. So, a witness to a sexual harassment claim would be protected from retaliation under state and federal laws, but an individual who reported theft of office supplies would not be covered.

What Is Protected Activity?

Individuals can be protected from retaliation for a number of different activities related to a discrimination claim. Reporting a discrimination claim and other opposition to discrimination qualifies as protected activity as long as you have a reasonable, good-faith belief that the activity you’re opposing is actually unlawful discrimination. It doesn’t matter what the final outcome of the discrimination claim is. You can’t be retaliated against if you opposed discrimination on a good faith belief that it was unlawful. If you’d like to learn more about what qualifies as unlawful discrimination, check out our discussion of the topic in our prior post on wrongful termination. Even you weren’t the one reporting the discrimination, simply participating in a discrimination investigation or claim is considered protected activity under the law. So, serving as a witness or providing a statement during an internal investigation would be protected.

What Is Adverse Employment Action?

The final key element of a retaliation claim is that your employer must have taken some adverse employment action against you because of your involvement in the discrimination case. The first thing that may come to mind when you read “adverse employment action” is getting fired, and certainly if your employer fires you because you’ve participated in a discrimination claim or investigation, that would qualify as adverse employment action. In the broader sense, though, adverse employment actions could include any number of attempts by your employer to discourage you from participating in the discrimination case. For example, if your employer demotes you, gives you a bad performance review, cuts your benefits, or threatens you with these types of actions, it could be considered retaliation if it is tied to your participation in a discrimination investigation or case. The action must have some significance to your employment terms, though, and cannot be a simple slight or off-hand remark that has no effect on your employment.

What Do I Do if I’ve Been Retaliated Against?

If you believe your employer retaliated against you because you reported or took part in a discrimination claim, you should contact an attorney immediately. An experienced employment discrimination attorney can advise you about the merits of your claim, the best way to pursue it, and the protections you have as a complainant. Depending on the facts of your case, you may have the option of filing a lawsuit or bringing a claim with an administrative agency like the EEOC, the New York State Division of Human Rights or the New York City Commission on Human Rights. You could be entitled to a variety of remedies, from getting your job back to recovering lost wages.

Contact Eisenberg & Baum for a free initial consultation on your case. Though we’re based in New York City, we have attorneys licensed in many states throughout the country and we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we can help no matter where you are.