Understanding Unlawful Retaliation in Employment

Employers cannot retaliate when employees engage in protected conductRetaliation in the workplace happens when employers punish workers for engaging in protected conduct. Conduct protected from retaliation includes asserting your own employment rights, acting with others to address terms and conditions of employment, and blowing the whistle on unlawful or dangerous conduct. 

Retaliation becomes unlawful when the employer's punishment, or adverse action, would deter reasonable employees from engaging in protected conduct. When employees prove that they suffered an adverse action because they engaged in protected conduct, they can recover substantial damages.

Types of Protected Conduct

The law safeguards employees who engage in particular activities, known as protected conduct. Employers are prohibited from retaliating against employees who engage in protected conduct, which can include:

If you are not sure whether conduct is protected or not, consult with an attorney. This is particularly helpful before engaging in the conduct. In addition, conduct might not be protected under a particular law unless the employee takes certain required steps, like submitting a complaint in writing under Ohio's whistleblower's law.

Finally, the time to take legal action may be short. Retaliation claims filed with OSHA for reporting unsafe conditions or violations of environmental laws, for example, must be filed within 30 days.

Size of Employers Subject to Anti-Retaliation Laws

Under federal law in the United States, employers with 15 or more employees are subject to anti-retaliation laws such as Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA). The Fair Labor Standards Act (FLSA), which covers wage and hour provisions, applies to employers of any size.

However, many state laws also provide protection against retaliation, often extending these protections to employers with fewer employees. Businesses in Northeast Ohio are covered by Ohio's Revised Code Chapter 4112, which covers employers of four or more employees.

How to Prove Retaliation

To prove retaliation has occurred, an employee must typically demonstrate that:

An "adverse action" can take many forms, including:

As a general rule, an adverse action must be be sufficiently severe to chill, or deter, the conduct at issue. As such, an unwarranted poor performance review, by itself, might not amount to an unlawful adverse action.

An edge case involved an employee suspensed for 37 days for allegedly complaining about harassment. The employer later rescinded the suspension, paid the employee for the time it suspended her, and argued that, since it repaired the harm, it could not be an adverse action. The US Supreme Court disagreed and found the conduct unlawful, since it would deter a reasonable worker from complaining about harassment.

Remedies for Retaliation Victims

If employees prove that they suffered an adverse action because they engaged in protected conduct, they can recover significant remedies. They include:


Unlawful retaliation in employment is a grave violation of employees' rights. If you believe you're a victim of unlawful retaliation, consult with an experienced employment law attorney to explore your options and protect your rights.

Employment Law Partners advise employees and companies about their rights and duties related to all forms of retaliation. We represent clients in cases involving terminations, suspensions, demotions, denials of promotion, hostile work environment claims, and other retaliation claims.

If you were the victim of retaliation in Ohio, you must file a charge with the Equal Employment Opportunity Commission (EEOC) or the Ohio Civil Rights Commission (OCRC) before you can file your case in court. We can advise you about which agency to file with, what to include in a charge of discrimination, and what to expect throughout the process. We also strongly recommend you contact us for legal advice as early as possible -- ideally before reporting misconduct by your employer or before responding to an employee’s complaint.



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