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Guard Against Retaliation

The importance of guarding against retaliation cannot be overstated. Forty-six percent of the persons, who file harassment claims, also file for retaliation.  It is a separate lawsuit, and awards can be made for retaliation, even though the harassment can not be proved.  Not only the complainant, but EVERYONE who was involved in the investigation must be protected against retaliation.  Beginning in 2016, family members of the person complaining are also protected from retaliation!

According to the law’s supporters, family retaliation is an especially common practice used against immigrant workers, who frequently find work alongside family members in agriculture fields, warehouses, and hotels.  Some examples of how retaliation might occur:

  • Employee’s hours are changed, making it more difficult for him/her.


  • Location to which employee is to report is changed.


  • Employee’s office location or furnishings is changed.


  • Employee’s workload increases.


  • Employee’s workload substantially decreases.


  • Employee is taken off “key” accounts.


  • People gossip about or demean employee who brought a claim of harassment, or was involved in the investigation.


  • Employee is excluded from social functions where they were included in the past.


  • Employee is demoted.


  • Employee is given horrendous projects no one else likes, or have all “fun” projects taken away.


  • Employee’s working conditions change, office is changed.


  • Suggestions are made that the employee should leave the workplace or department.


  • Employee’s work is now hyper-analyzed or criticized.


Once again, communication is key.  Keep checking back with the employee and ask what his/her perceptions are.


More About Retaliation: 

Particularly in situations where an employee requests an accommodation for a disability or a religious practice, providing a reasonable accommodation is no guarantee against a retaliation claim.   For example, if an employee REQUESTS an accommodation and you PROVIDE it, you may still be held liable if someone in the company retaliates against the employee AFTER you have provided the accommodation.


Key Distinction:

  • Employers cannot retaliate or otherwise discriminate against a person for requesting accommodation of a disability or religious beliefs, regardless of whether the employer granted the request.


  • Before passage, many courts held that an adverse employment action in response to a mere request for a reasonable accommodation could not be the basis of a retaliation claim.
  • This bill amends the Fair Employment and Housing Act under the religious and disability protections.


In your small group discuss, is this retaliation or could it be interpreted as   retaliation? 

  1. Mr. Smith accommodates Susan’s request for Saturdays off, and allows her to leave work by sunset on Friday in order to comply with her request for a religious accommodation. Annoyed about having to treat her special, and not conscious of his annoyance, Mr. Smith starts to pick on Susan’s work performance, criticizing her for every slight error.


Could this be considered to be retaliation under the new requirements?