As employment lawyers, we often meet with potential clients who don’t quite understand the difference between plain English retaliation and the kind of retaliation that rises to the level of actionable retaliation.
There’s a good reason why people don’t know the difference. The plain English definition of retaliation is completely different from the legal definition. Not all acts of plain English retaliation rise to the level of “actionable retaliation.” This blog explores the difference between these two and what they mean in the context of your job.
What Is Retaliation?
When I say “plain English retaliation,” what I mean is the layperson’s definition of retaliation. Merriam-Webster defines retaliation as: “to return like for like. [E]specially : to get revenge” or “to repay in kind.”
In the workplace context, this can look something like the following:
Jordan works as a team lead for a mid-sized tech company. Jordan recently filed a complaint with Human Resources (HR) about his manager, Alex. Jordan alleged that Alex always assigns the most desirable projects to Alex’s best friend, Brent. Alex does this even when Jordan has more bandwidth for a new assignment than Brent. HR launched an investigation and interviewed Alex. As a result, Alex learned of Jordan’s complaints against him.
Following the HR investigation, Jordan began noticing Alex’s retaliation. Jordan was no longer assigned to any high-profile projects. Alex stopped communicating with Jordan in person and started using email exclusively. Within three weeks of the HR complaint, Alex filed a very negative performance evaluation of Jordan, jeopardizing Jordan’s job. Jordan had never received a negative performance evaluation and had always maintained excellent performance records prior to his complaint.
Here, it at least appears that Alex is “retaliating” or “seeking revenge” against Jordan for Jordan’s HR complaint. However, while this may be retaliation under the plain English definition, it does not constitute actionable retaliation.
Unfortunately, there are no federal or Texas state laws that protect Jordan in this scenario. He has a personal issue with his supervisor, and now his supervisor has it out for him. It’s not unlawful for Alex to dislike Jordan for reporting him to HR. Sadly, Jordan does not have a cause of action to sue the company because of Alex’s “revenge.”
Ultimately, because we live in an at-will jurisdiction, Alex could very well terminate Jordan’s employment. Hopefully, HR would see things differently here, especially because Jordan had a great performance record before his HR complaint. However, if HR sides with Alex, there’s not much Jordan can do—unless he can identify something that renders Alex’s retaliation actionable.
What Is Actionable Retaliation?
Actionable retaliation, in a general sense, occurs when an employer takes an adverse action against an employee because the employee engaged in a protected activity.
Protected activities might include:
- Reporting discrimination or harassment
- Participating in an investigation regarding someone else’s discrimination complaint
- Filing a complaint with a government agency, such as the Equal Employment Opportunity Commission
- Exercising rights under employment laws, such as requesting medical leave under the Family and Medical Leave Act
Examples of retaliatory acts might include demotion, termination, denial of benefits, reduction in hours, or even subtler forms like sudden exclusion from meetings or unfavorable work assignments.
For retaliation to be actionable, it must meet certain legal thresholds:
- Protected Activity: The employee must have engaged in a legally protected activity, such as those listed above.
- Adverse Action: The employer must have taken an adverse action that would dissuade a reasonable person from engaging in the protected activity. This includes significant actions such as termination, demotion, or a substantial change in job responsibilities. Trivial slights or minor annoyances often aren’t enough.
- Causal Connection: There must be a clear link between the employee’s protected activity and the employer’s adverse action. Timing can play a significant role here. For example, if an adverse action closely follows a complaint, it may suggest retaliation.
Back to Jordan’s example, if his original complaint to HR was based on something protected under federal or state laws, then any subsequent “revenge” from Alex could be actionable. If Jordan’s HR report was that Alex was discriminatorily depriving Jordan of work based on Jordan’s age (64 years old); then Alex learned of the HR report; and Alex began retaliating, that would be actionable. That is because age is a protected class under federal and Texas law.
Conclusion
Understanding the distinction between everyday retaliation and actionable retaliation is important for those who find themselves in workplace disputes. Employees should be aware of their rights and the thresholds they must meet in order to pursue legal action. If you want to learn more about whether you are being retaliated against, please call one of our Texas employment lawyers for a consultation.