Prohibition of Retaliation in the Workplace:
The prohibition of retaliation in the workplace is perhaps the most misunderstood laws by most employees. The classic example is of an employee who reports his/her supervisor for some conduct which violates either an actual policy of the company or is just not “fair” as most of us understand that word, and then the supervisor “retaliates” against that employee in some way, whether it is by formal discipline for every small thing, or by demotion or termination. While that is obvious retaliation as most of us understand the use of that term in normal, everyday life, it is NOT illegal retaliation.
For there to be illegal retaliation, the employee must have complained about discrimination, for example, reporting the supervisor for mistreatment due to the membership by the employee in one of the “protected” classifications listed above.
The employee must make the complaint clear, however, and can’t expect the company to understand without the employee being specific. One of the many examples of an employee NOT being specific is when an employee is not willing to come right out and say they are being treated differently because of their race or gender. This is a mistake because if the complaint is not clear enough for a reasonable person to understand that the complaint is based on membership in one of the “protected” classifications, then the complaint will not be “protected” and any sort of retaliation will NOT be against the law. The reason I hear over and over again from prospective clients about why they did not use the “race card” or they did not use the word “discriminate” or discrimination” is because they were afraid of being labeled a troublemaker or they were afraid for their jobs, or worse, they didn’t want to believe discrimination is what was going on. This is the biggest mistake an employee can make, and if the employee is not going to be specific it is better to just not say anything.
Retaliation can also be illegal if the employee objects to or refuses to participate in the violation of a law, rule or regulation. This is referred to sometimes as “whistleblowing.”
The important point here, however, is that the employer’s actions must be in violation of an actual state or federal law or administrative rule or regulation made by a governmental agency such as the Department of Transportation or the Department of Health and Human Services. This type of claim CANNOT be based on the violation of some corporate policy or rule. The law, rule or regulation must have originated from department or agency of the state or federal government.
A good example of this type of retaliation claim is when an employer retaliates against an employee for reporting an on the job injury. This is perhaps the most frequent type of retaliation claim, which originates from Florida Statute Section 440.205. Most of us believe that if we report an on the job injury or make a claim for workers’ compensation that we will eventually be either terminated or in some other way, experience some sort of other trouble on the job. Unfortunately, this belief is usually correct.
Another example is where an employer is violating a law, like dumping toxic waste into the river, and the employee either refuses to participate in the activity, or reports the activity to the authorities and then the employer finds some reason, usually made up, to fire that employee.