Retaliation – Illegal vs. Unfair

Retaliation – Illegal vs. Unfair

On Behalf of | Apr 20, 2015 | blog

There are many people who have experienced retaliation in the workplace for
being a whistleblower. However, important analysis must be done to determine
if that retaliation was illegal or only unfair. While this article is meant to
provide some clarity to these issues, this is not substitution for a
consultation with one of our attorneys who can fully assess what you have

Generally, retaliation occurs when an individual faces negative treatment
after raising a complaint or concern about an issue in the workplace. This
negative treatment can range from minor slights (like not getting invited to
casual lunches) or significant events, up to and including termination.
However, not all retaliation is illegal retaliation.

For example, Sandra complains to HR that her manager, Steve, stinks up the
break room when he microwaves his leftover seafood for lunch. As a result,
Sandra doesn’t receive as many favorable shifts and her hours are reduced.
Assuming that this is the full set of facts, Sandra has, in fact,
been retaliated against by Steve and, while it is certainly unfair, it is not
illegal. What we mean by “full set of facts” is, most of the time, an employee
does not realize other facts may be at play when they receive unfavorable
treatment. For example, Sandra may not realize that Tom, Dick, and Harry have
also complained about Steve’s fishy-smelling lunch; however, they have
continued to receive favorable shifts and their hours have not been reduced.
Therefore, Steve accepts the complaints when they come from his male
subordinates, but not from Sandra who is a female. This surpasses the unfair
retaliation and becomes illegal discrimination. However, Sandra is unlikely to
make this connection absent meeting with an attorney and asking the right

Alternatively, Renee complains to HR that she was told not to consider any
women for an upcoming position because the company’s clients relate better to
men. As a result of this complaint, she is demoted with a cut in pay and her
duty of interviewing prospective employees is given to someone else. Again,
assuming that this is the totality of the facts, Renee has also been
retaliated against, but in this example, it is illegal.

The difference is in the nature of what is being complained about. In order
for illegal retaliation to occur, once must suffer an adverse employment
action based on a complaint raised about a violation of a law, rule or
regulation, not simply a company policy. So, while it may be an unwritten rule
of courtesy in Sandra’s workplace to not have overly smelly lunches at work,
there’s no law against it. However, there are laws against gender
discrimination, which it appears Renee complained about, so she would have a
retaliation claim.

These are obviously very simple examples meant to illustrate otherwise
complicated legal matters. Most employees experience a scenario which is far
more multi-faceted than those presented here, which is why it is imperative to
meet with an attorney so that your entire situation can be analyzed and a
determination can be made as to whether or not the retaliation you were
subjected to was also illegal retaliation. Just like in Sandra’s situation,
simply because the complaint itself would not be protected under the law,
Steve’s gender-based response is illegal. For this reason, we advise you
contact Wilson McCoy, P.A.. if you feel you have been retaliated
against and would like to explore the details of your case. Our attorneys are
skilled and experienced in identifying issues where other may not see.