Retaliation and Harassment are ‘Terms of Art.’
Over the past week, I’ve educated at least two potential clients on the difference between the ordinary daily use of the word “harassment” and “retaliation” versus the legal definition. It’s no wonder that an employee would be confused. Harassment is harassment is harassment, right? And, surely it means that my boss has picked on me to the point that I’m seeking psychological – or legal - counsel? Not so when it comes to the law.
A quick online search for the word harass yields the following: pester, badger, hound, harry, plague, torment, bedevil, persecute, bother, annoy, exasperate, worry, disturb, trouble, agitate, provoke, vex. Under this definition, any parent should be able to bring a lawsuit against their young child!
Yet, to be legally actionable against an employer, an employee has to show that the unwanted/offensive conduct/comment(s) was because the employee was a member of a protected class, e.g. because he or she was disabled or older, because of gender or pregnancy, because of religious affiliation, race, sexual identity or preference, for being a veteran or because of national origin. And, because an employer isn’t expected to be psychic, the employee has to show that the employer was on notice of the unwelcome conduct. Ideally, the affected employee made a report to Human Resources (“HR”); or that the employer “should have known.”
There are two different types of “retaliation” in the workplace for the purposes of legal action. Of course, when an employee believes their boss has acted unfairly, perhaps reprimanding that employee for an action the employee believes was perfectly reasonable or defensible, that employee may seize upon the word “retaliation” to describe what just happened. It’s then my job as an attorney to determine whether it meets the legal definition.
Fair Employment and Housing Act Retaliation. In theory, an employee should be able to assert a legally protected right in the workplace with impunity, e.g. the right a workplace free from discrimination, the right to a reasonable accommodation for a disability or the right to take protected medical leave. An employer’s reaction to an employee’s assertion of a legally protected right is key, here. If, within a short period of time of such an assertion, an employee finds themselves subject to bad treatment that changes the “terms or conditions” of their work, they may have a supportable claim for retaliation under the Fair Employment and Housing Act.
Labor Code Retaliation. This second type of retaliation is commonly known as “whistleblower retaliation,” popularized by media and movies about the hero inside the workplace who figures out that some illegality is taking place inside the company and takes it upon themselves to either point it out to leadership, refuses to participate in the illegality or makes an official report to a regulatory agency charged with overseeing that industry or investigating such claims. Once an employee has made a complaint about the illegality, or perceived illegality, they are afforded some protections under the law: specifically, a termination (or other adverse action taken against that employee) hot on the heels of such a report would be viewed suspiciously as retaliatory and any other reason given by the employer could be deemed pretext.
Evidence and Damages.
Even if an employee’s bad experience in the workplace amounts to actual harassment or retaliation, an attorney will ask for evidence. In other words, did your boss use derogatory language toward you in front of other employees (a.k.a. witnesses) or did you report it to HR? Even if it’s just your word against them, it can be enough: for instance, maybe the employer is so small that the boss is also HR, but, you made it clear or it should have been clear that the derogatory language or conduct was unwelcome and offensive.
Attorneys also look at damages. In other words, how much money did you lose over this unwelcome conduct or retaliation? Did it result in the loss of your job or alter the conditions and terms of your employment in a quantifiable way? Can we put a dollar amount on the emotional distress that you suffered as a result of the situation? Many if not most contingency-based attorneys will think twice or thrice about taking on an employment matter in the event that the employee has not lost their job or when the damages may amount to little or nothing.
Word to the wise: it’s usually time well spent to discuss your experience with an employment law attorney. Sometimes, you can decide, together, whether it’s worthwhile to pursue a claim – or, whether you’re best served just moving on with your life and hopefully finding a less toxic work environment.