Have you ever spoken out on behalf of a co-worker who was being treated unfairly only to find yourself getting the stink-eye from your boss? Did your annual evaluation suddenly decline after you told a younger-male employee that his comment about an older female employee was inappropriate? These are examples of the way retaliation claims can start.
A recent article chronicles the rise in retaliation claims as the leading employment claim handled by the U.S. Equal Employment Opportunties Commission. (Read the article here). Retaliation victims can be people who were subjected to unlawful discrimination (or what they reasonably believed to be discrimination) and made internal complaints that led to retaliation, or other employees who engage in legally protected activity by opposing what they reasonably believe to be unlawful treatment of other employees.
This means that someone who is not a member of any protected class (i.e., age, race, gender, etc.), but who complains about what they believe is the mistreatment of another employee, may have an actionable claim of their own if they are subjected to unlawful retaliation because of their protected activity. As the article mentioned above describes, retaliation claims can in some cases be more successful than claims based on the underlying discriminatory treatment because the retaliation claimant does not need to prove that there was, in fact, underlying discrimination, but merely that they reasonably believed that there was discrimination.
Lay people are not held to an exacting standard of understanding what is and is not actionable discrimination. So potential retaliation claims are another good reason for employers to try to nurture workplace cultures of civility and respect for co-workers. Employees who think they may be subjected to retaliation should protect themselves by keeping copies of all related communications, including but not limited to their internal complaints and all responses, and especially any snarky emails from their bosses or co-workers that show how they were treated after making a complaint.