What is retaliation?
Retaliation is basically an employer’s way of seeking revenge upon on employee for trying to enforce his or her legal rights. An employer is expressly prohibited from terminated an employee relationship for an employee’s attempt to assert his or her own legal rights. To establish a case of retaliation, an employee is required to show 1) he or she engaged in a protected activity (such as exercising constitutional rights); 2) he or she performed his or her job according to his employer’s legitimate expectations; 3) despite meeting his employer’s legitimate expectations, he or she suffered a materially adverse employment action; and 4) he or she was treated less favorably than similarly situated employees who did not engage in a protected activity. If this case is satisfied, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action that had nothing to do with retaliation. Examples of “protected” activities include the following: asking for overtime pay, filing a complaint against the Department of Labor or OSHA, reporting sexual harassment, or applying for medical benefits and leave, as in under the Family Medical Leave Act.