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Understanding Protected Activity

Upset man sitting with a box of belongings after being fired

Those employed or looking for employment have the right to be free from discrimination and harassment. Under Equal Employment Opportunity, asserting these rights is considered protected activity. Employers cannot retaliate against a person for protected activity.

Protected activity can come in various forms. It can include filing a complaint or lawsuit, discussing an incident of harassment with a manager, refusing to engage in a discriminatory action, requesting a reasonable accommodation for disability or religion, resisting sexual advances and asking management about salary information.

Protected activity can come into play at any time during the employment process. If you are denied accommodations for a disability during the interview process, you may be a victim of retaliation. Therefore, it’s important to understand the various types of retaliation you could face and what to do if you are a victim.

What Constitutes Retaliation?

There must be all of the following three elements in a valid retaliation claim:

  1. Protected activity by an employee (such as filing a complaint)
  2. An employee receiving adverse action from management (such as a demotion or pay cut)
  3. A connection between the protected activity and adverse action (the employee filed a complaint and was fired the next day)

Types of Retaliation

Retaliation against an employee can come in numerous forms. An employer may engage in the following actions:

  • Give the employee a pay cut or less desirable position
  • Purposely make the employee’s job more difficult
  • Give the employee an undeserved negative performance review
  • Fire the employee
  • Verbally or physically abuse the employee
  • Spread false rumors
  • Threaten to contact the authorities

Proving Retaliation

Proving that two events are directly connected can be challenging. Sometimes the employer will flat-out admit it and make a statement like “Don’t file that complaint or I’ll fire you.” In most cases, though, you’ll have to prove causation.

Of course, the manager would need to have knowledge of the claim. You have no case if your manager took adverse action even though he or she did not know about the complaint. Another way to prove it is through timing. If you file a complaint and are fired soon after, it’s going to look bad for the employer.

You may also be able to prove retaliation if your employer has no logical explanation for the adverse action. For example, if you have been an outstanding employee but suddenly receive a negative performance review that can’t be explained, this can look suspicious.

However, if an adverse action happened to more than one person—such as a layoff or pay cut—you’ll have trouble proving that your protected activity was the cause.

Contact New York Work Harassment Lawyers

Workplace retaliation can make an employee’s life miserable. You may be faced with constant threats, be demoted or lose your job altogether. While you may feel like quitting your job, seek legal help before you do anything.

The experienced New York work harassment lawyers at Ricotta & Marks, P.C. can help you protect yourself. We can help you with the next steps, such as negotiating a resolution with your employer. To schedule a consultation, contact our firm today at (347)-464-8694.


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