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Retaliation
Practical Law Glossary Item 6-503-9612 (Approx. 5 pages)
Glossary
Retaliation
In the employment context, taking adverse action against an employee because they engaged in certain activity protected by law. Conduct constituting protected activity varies by statute. Some examples include:
- Lodging an internal complaint alleging unlawful discrimination or harassment by the employer.
- Filing an administrative complaint or lawsuit alleging the employer violated the Fair Labor Standards Act.
- Whistleblowing, in certain contexts.
An adverse action sufficient to support a retaliation claim varies by jurisdiction and statute, but typically includes an action that might dissuade a reasonable worker from engaging in protected activity, such as:
- Terminating the employee.
- Demoting the employee.
- Reducing the employee's work hours.
- Reassigning the employee to a less desirable position or duties.
- Third-party reprisals, such as terminating someone with a close relationship to the employee (like a fiancé).
Generally, the individual who engaged in protected activity and experienced retaliation can bring an action against the employer for unlawful retaliation. Others who have a close association with that individual and who fall within the zone of interest protected by the applicable statute also may have standing to sue the employer for unlawful retaliation. For example, under Title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e-3), it is unlawful for an employer to retaliate against an employee who engaged in protected activity by terminating that employee's fiancé (Thompson v. North American Stainless, LP, 562 U.S. 170 (2011)).
Federal laws prohibiting retaliation include:
- Section 1981 of the Civil Rights Act of 1866 (Section 1981) (42 U.S.C. § 1981).
- The Employee Retirement Income Security Act of 1979 (ERISA) (29 U.S.C. § 1140).
- The Fair Labor Standards Act of 1938 (FLSA) (29 U.S.C. § 215(a)(3)).
- The Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C. § 2615).
- The Immigration Reform and Control Act of 1986 (IRCA) (Pub. L. 99-603, 100 Stat. 3359 (1986), as codified as amended in scattered sections of 8 U.S.C.).
- The National Labor Relations Act of 1935 (NLRA) (29 U.S.C. § 158(a)(4)).
- The Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. § 660(c)).
- The Pregnant Workers Fairness Act (PWFA), effective June 27, 2023 (42 U.S.C. § 2000gg-1).
- Title VII.
Many state statutes regulating the employment relationship also prohibit retaliation by employers. For more information, see Anti-Discrimination Laws: State Q&A Tool: Overview of State Anti-Retaliation Law.
For more information on retaliation generally, see Practice Note, Retaliation.