Wednesday, February 25, 2015

Employee Complaints and Retaliation - What is Legal and What is Illegal

I Complained to HR and Told My Employer That My Boss or Co-Worker is a Bully. Now I am the Victim of Retaliation and am Always Being Unfairly Singled Out, Written Up, Disciplined and Punished - Do I Have a Hostile Work Environment Case?

I get this question a lot.  I have written on this issue extensively.  I have also made the below Video on Hostile Work Environment:

Title VII and Hostile Work Environments

Title VII, and related federal laws, protect people from being treated unfairly if the reason for the unfair treatment is the employee's age, sex (including pregnancy), race, national origin, religious beliefs or disability.

People who fall into these categories are deemed to be members of a "Protected Cla."

So, if your complaint to HR specifically stated that you were being bullied because of the fact that you are a member of a Protected Class (i.e. because of your race, age, sex, etc), then you engaged in "Protected Activity" and any retaliation taken against you would be illegal.

NOTE: That does not necessarily mean that you have "a case" that would interest a contingent fee lawyer, however. We look for retaliation that results in loss of earnings, such as a demotion, failure to promote or termination.

So, if you are merely being subjected to retaliatory attitudes, or discipline such as a Performance Improvement Plan (the most common form of sublime retaliation), you will find yourself locked in a battle.

They Are Trying to Get Me to Quit - Would That be a Constructive Discharge?


The most common tactic undertaken by employers after an employee engages in Protected Activity is not to fire or demote them.  That would be too obvious.

What Are the Signs That My Employer is Attempting to Constructively Discharge Me in Retaliation for a Complaint I Made to Human Resources?

The time-honored approach is to employ a campaign designed to make the employee's life at work so miserable that he/she will eventually quit.  Here is some of the most common, time-honored ordnance used in such schemes:

·       Isolating the employee by ignoring him/her whenever possible

·       Excluding the employee from meetings to which he/she is ordinarily invited

·       Criticizing the employee’s work-product

·       Disciplining the employee for minor infractions

·       Subjecting the employee to a Performance Improvement Plan

Embarrassing the employee via public rebuke in presence of co-workers 

What Should I Do If My Company is Punishing Me in Retaliation for My Complaint of a Hostile Work Environment?

Although you may not have a "case" worth any real money yet, a qualified and experience employee-rights lawyer can help an employee being subjected to a Hostile Work Environment create and employ any one of a number of strategies designed to give the employee the upper hand.

These strategies vary from case to case, and are too diverse and numerous to list here.

What is a Hostile Work Environment - Am I a Victim of Unlawful Retaliation?

In the context of retaliation claims, an unlawful Hostile Work Environment is one in which an employee is treated in an aggressively negative way by co-workers and/or supervisors who dislike the employee because of his/her age, sex (including pregnancy), race, national origin, religious beliefs or disability.

Mistreatment Must Be Because You Are Different
In other words, if you are in a Protected Class, and comments are made about that aspect of you, or if you are being denied opportunities or subject to punishment as compared to your co-workers, and you believe the reason for this treatment is your age, sex, race, etc., you may be the subject of an illegal Hostile Work Environment.

If you believe you are being treated improperly because you are in one of these Protected Classes, and you make a complaint to the company that specifies your belief (it must specifically refer to the fact that you believe you are being treated hostilely BECAUSE of your age, sex, race, etc.), then any subsequent act of retaliation against you could be illegal.

Illegal Retaliation Under Family and Medical Leave Act, Overtime Laws or Workers Compensation Laws

In addition, it is unlawful for a company to retaliate an employee who has exercised his/her rights under certain laws, such as the Family and Medical Leave Act, the Fair Labor Standards Act (overtime law) or state workers compensation laws.  So, if you are punished after taking family leave, asking for overtime payments or going out on workers compensation, you may have a claim for illegal retaliation.

Number One Question
After I Complained About Being Bullied, Singled out for Harassment, or Treated Unfairly by a Supervisor Who is Out to Get Me Because He/She Does Not Like Me, I Have Been the Victim of Retaliation - Isn't That Illegal?

This is perhaps the most common question I get.  Here is the answer:


If you are simply being treated unfairly because your boss or co-workers do not like you, like someone more than you, or are simply jerks, and you complain about such mistreatment, you are not protected from retaliation under federal laws, or the laws of Pennsylvania (or in most any other state).

That is so because, as pointed out above, "complaining employees" are protected from retaliation only if they lodge reasonable complaints that the subject mistreatment exists because of their status as a member of a Protected Class.

So, if you complain to HR about a jerky boss, a co-employee's nastiness and deceit, or the fact that you are being treated differently than your co-worker(s), you are without any protection from retaliation UNLESS you specify in your complaint that you believe the reason for the situation is your inclusion within a Protected Class.

I am sure this is disappointing news for many readers, but these are standard, textbook employment law principles and, absent some major change (like the passage of a law making workplace bullying illegal), that is the law.
Helping Pennsylvania Employees Since 1991
Philadelphia Are Employment Attorney Representing Employees

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania. 

John typically represents employees who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.

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