Retaliation is a Common Tale
Retaliation is a very real cause of action in the employment law context. You complain to your boss and get fired. This happens all the time and people scream, “That was retaliation!” Except, it’s usually not.
Not surprisingly, retaliation is the most common filing received by the Equal Employment Opportunity Commission (“EEOC”). The issue is that retaliation only covers certain things. Most people believe that if they say anything to their boss, and get fired, that they have a lawsuit. That is simply not true.
How Retaliation Works
Various employment laws protect employees from retaliation only when they “engage in protected activity.” Protected activity is a phrase used to describe three things:
- An employee filing a complaint of discrimination;
- An employee participating in a proceeding related to discrimination; or,
- An employee opposing discrimination.
As you can see, there is one common denominator to protected activity – DISCRIMINATION. In the employment law context, employees are protected from retaliation when they complain about illegal discrimination. Illegal discrimination is discrimination based on the membership in a protected class (race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age, disability, or genetic information). Absent a complaint about a protected class – there is no retaliation claim.
Example of Retaliation
A retaliation claim does not protect anything you say. At the same time, real protected activity can take many forms. Here are two examples to show you the difference.
Employee A is passionate about his work and believes he has the right strategy to win a big client. He has a meeting with his boss where he complains about the strategy being used. Employee A knows the boss hates looking bad, but he corrected his boss about the strategy anyway. The boss thinks Employee A is wrong and fires him based solely on a business disagreement. This would not be an example of unlawful retaliation.
Employee B was subjected to offense name calling at work based on her disability. Employee B complains to her boss about the discriminatory activity and asks the company to investigate. The next day, Employee B is fired by the same boss she complained to. The boss fired her because he did not want to deal with the discrimination claim. This is an example of unlawful retaliation.
Florida Also Has a Whistleblower Statute
It is important to note that Florida also recognizes a cause of action for retaliation when the protected activity involves illegal activity that is not related to discrimination. For example, an employee is protected from retaliation for complaining to an executive about illegal accounting practices taking place at the company. This is commonly referred to as a whistleblower claim.
Contact The Montone Law Firm, P.A.
The Montone Law Firm, P.A. handles retaliation claims as a routine part of its practice and is happy to provide a free case evaluation if you are facing these issues and need to review your options. You can call 407-565-8228 or submit a free case evaluation to get started.