I'm Gonna Get You!! What is “Retaliation” in Employment?

Retaliation is a very misunderstood concept in employment law. Much like the terms “wrongful termination” and “harassment”, the legal definition of “retaliation” is narrower than the common definition.

As commonly understood, retaliation in employment means any form of employer-revenge as a result of the employee speaking out over any workplace issue.

Legally speaking, retaliation is only illegal if the employee engaged in “protected activity”. Not all activities are protected against retaliation. There are dozens of types of protected activities in employment law. The most common forms of protected activity are good faith complaints of unlawful discrimination based on the employee’s disability or health condition, requests for health accommodation, pregnancy, gender, race, religion, sexual orientation and other legally protected characteristics.

As an example of un-protected activity, take the case of Julia. Julia has worked as a nurse for five years for Franciscan Hospital in Santa Cruz, California on it’s prestigious cancer treatment ward. Julia is passionate about treating patients with cancer. Unfortunately, Julia gets a new manager, Bob, who abruptly reassigns Julia to the hospital’s incredibly boring podiatry unit. Julia is miserable in the podiatry unit. She repeatedly complains to management and says that her work is “boring”, that it “doesn’t effectively use her skill set” and that “the job stinks”. Eventually, Bob gets tired of Julia’s complaints, and at the end of the year recommends that the hospital terminate Julia’s employment.

Unfortunately nurse Julia does not have a case for retaliation against the hospital. Did Bob the supervisor act morally and ethically in taking away her beloved job on the cancer ward? Probably not. Did Bob most efficiently apply Julia’s skill set at work? Nope. Was it vengeful, mean, and immature for Bob fire Julia after she complained? Absolutely. However, Julia still does not have a case for retaliation because she did not engage in protected activity.

As an example of activity that is protected against retaliation, let’s change the facts and imagine that nurse Julia suffers from diabetes. Nurse Julia has to take daily ten-minute breaks during work to take insulin and test her blood sugar to manage her diabetes. She must also regularly take time during the workweek to attend doctor appointments. Unfortunately, Julia’s new manager, Bob cannot stand Julia’s time away from work and issues her a poor performance review. Bob specifically gives Julia a one-star ranking in the categories of “attendance” and “teamwork” and writes “Julia should manage her health condition on her own personal time, not at work.”

After receiving the poor performance review, Julia submits a written complaint to Bob and the hospital’s CEO about Bob’s comments and states, “I’m being discriminated against because of my diabetes…” and “I will need periodic breaks from work to manage my diabetes.” After receiving the complaint, the hospital CEO fires Julia because he does not want a “complainer” working for him.

Julia has a great case for unlawful retaliation. Julia engaged in protected activity by complaining about Bob’s discriminatory conduct and by requesting a reasonable accommodation to manage her health condition. Julia would be entitled to reinstatement, economic, and emotional distress damages under California’s Fair Employment and Housing Act.

Are you an Aptos, Santa Cruz, Watsonville, or Monterey County employee experiencing retaliation at work? Call the Law Office of Brian Mathias before you are terminated for a free consultation.

Ready to stand up for your rights?

What is a "wrongful" termination

The term, “wrongful termination” is the most commonly misunderstood legal term in employment law after “harassment.”  (See the article "What is illegal harassment in employment?") The legal definition of “wrongful termination” is much narrower than most think.

To an employee, a termination may be “wrongful” in the employer’s reasoning for the termination did not make sense, if it was based on a mistake by the employer, favoritism, misplaced blame, or if the termination was no fault of the employee’s.

As an illustration, Sally the Salesperson, works for the national retailer K-Smart. One day on the sales floor, Sally’s coworker, Arnie, places incorrect bar codes on numerous pieces of merchandise. As a result of Arnie’s blunder, dozens of items sell for less than full retail value. Unfortunately, K-Smart management incorrectly blames Sally, and not Arnie, for the lost revenue. Sally is then fired.  

Sally may describe her termination as a wrongful termination. After all, it was Arnie’s mistake, not Sally’s. Morally, Sally is correct in labeling her termination as “wrongful”. However, Sally’s termination doesn’t actually meet the legal definition of a wrongful termination.

Legally, a wrongful termination is a termination that violates the law or a government policy. The most common wrongful terminations are those based on discrimination or harassment because of a "protected characteristic". This includes terminations based on age (if over 40), ancestry, color, disability or “health” discrimination, gender, gender identity, military and veteran status, marital status, national origin, race, religion, and sexual orientation. Other policies prohibit retaliation against whistle blowers--employees who have reported illegal acts. There are dozens of government policies that may constitute a wrongful termination.

However, there is probably no policy that legally prohibits K-Smart from incorrectly firing Sally for the negligence and mistake of a co-worker. Therefore, Sally was not “wrongfully terminated” in the legal sense of the term.

As an illustration of a wrongful termination that would meet the legal definition, let’s slightly twist the illustration with Sally the Salesperson described above. Imagine that Sally the Salesperson is five-months pregnant. Even though Sally is pregnant, she is still performing the same duties and working the same number of hours at K-Smart as she did pre-pregnancy. However, upon discovery of the incorrect bar codes, Sally’s supervisor, Johnny, tells K-Smart Human Resources, “It was probably Sally’s mistake. Sally is pregnant and has baby brain. She can’t think straight and shouldn’t be working anyways.” Sally is then fired from K-Smart.

Under these facts Sally has been wrongfully terminated in the legal sense of the term. Johnny’s statements about Sally’s performance are direct evidence that Sally’s termination was motivated by her pregnancy; a legally protected characteristic. K-Smart has violated California’s Fair Employment and Housing Act’s prohibitions against pregnancy discrimination in employment. Under these facts, Sally does have a case of wrongful termination of employment.

Do you think you were wrongfully terminated? Do you know someone who was? If so, visit or call Brian Mathias Law for a phone consultation. Ready to stand up for your rights?