In this article, an Orange County employment law lawyer examines and explains retaliation and adverse employment action in the workplace.
Retaliation is defined by your Orange County employment law lawyer as reprisal action taken by an employer against an employee who protests in opposition of unlawful or unfair treatment.
Your Orange County employment law lawyer can include under that heading any action taken by an employer against an employee who takes part in an investigation of such unlawful employment practices. Both of these are strictly prohibited, not only by all state-enacted antidiscrimination legislation but by Title VII.
In building a case against retaliatory action on the part of an employer, an Orange County employment law attorney must consider whether or not “adverse employment action” has taken place and if the employee has been the victim thereof.
Ultimate Employment Decisions Question
Such actions include but are not limited to demotion, refusal to hire or termination, which are the “ultimate employment decisions.” Your Orange County employment law attorney can point to an appealed case brought before the United States Supreme Court in 2006 that brought into question the premise that actions taken by an employer that did not quite extend to the “ultimate employment decision” can still be considered adverse under Title VII (Burlington Northern and Santa Fe Ry. Co. v. White).
U.S. Supreme Court Ruling
In the above case, the Circuit Courts of Appeal were divided and referred the question to the Supreme Court. Your Orange County employment law attorney can advise you that under the Supreme Court’s ruling and interpretation, adverse actions were not confined to firing, refusal to hire or demotion. The Court ruled that any action taken by an employer that a reasonable applicant or employee would find damaging (materially adverse) is included under the provision against retaliation and is therefore illegal.
A knowledgeable Orange County employment law lawyer can remind you that the Supreme Court’s ruling does not include the “little things” that can happen when people work together. Such issues as impoliteness, trivial irritations, occasional unkindness, snubs and the like are not normally considered “retaliation.” Each case must be considered according to the facts and evaluated from there.
To illustrate, your Orange County employment law lawyer can show you the following quotation from the ruling handed down by the Supreme Court:
“We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters. . . . A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children. . . . A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.”
Protect Your Rights
If you believe that you have been the object of a retaliatory action by your employer, your Orange County employment law lawyer is here to help. Call Daily Aljian LLP at 949-861-2524 for information, guidance and/or assistance.