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What is Retaliation?
Several federal and state employment laws also contain anti-retaliation provisions. The provisions prevent employers from punishing employees that exercise these various legal rights. There are several such anti-retaliation laws, but the most common include: Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Missouri Human Rights Act, the Family Medical Leave Act (FMLA), and Missouri's workers' compensation law. Each of these provisions are slightly different as to what is protected, what is available to a victim of retaliation, and how long an employee has to file a claim. Below are some common factors for most retaliation claims.
Exercising a Right
The first part of any retaliation claim is the source of the employer's anger: the legal right exercised. Most of these laws offer much broader protections from retaliation than the standard laws themselves. For example, an employer cannot retaliate against an employee that participates in an investigation by the EEOC, even if that employee has no claim herself. Additionally, an employee cannot be retaliated against for protesting actions that are prohibited by Title VII or the Missouri Human Rights Act. The employee doesn't need to be the victim of these unlawful actions; opposing such actions is protected from retaliation itself, very similar to whistleblowing.
Adverse Actions
For nearly all discrimination claims, unpleasant actions by themselves are not enough to support a claim. Instead, discrimination must rise to a level of an "adverse employment action." Retaliation offers broader protections. Any "employer actions that would have been materially adverse to a reasonable employee." Burlington N & Santa Fe RR v. White, 547 U.S. 53, 68 (2006). This means that a victim of retaliation doesn't have to be demoted, suspended, or fired to bring a claim. Instead, so long as a normal employee would find that action unpleasant enough to keep them from exercising whatever right is at issue.
For example, in Ralph v. Lewis Bros. Bakeries, a jury found that name calling was sufficiently adverse to support a claim of retaliation. The employee in that case had suffered a hand injury, and sought medical treatment pursuant to work comp. Supervisors then began referring to injuries as "John Ralph diseases," referencing the employee's name and injury. These actions were sufficiently unpleasant to dissuade other employees from seeking medical care of work-related injuries, making this retaliation.