Sometimes, an employment relationship can become acrimonious. A disgruntled employee is more likely to complain and more likely to fail to perform work. As a result, some terminated employees try to assert that the loss of their employment was not their performance or attitude but instead because of unlawful retaliation. In lawsuits accusing the employer of retaliation, plaintiff-employees generally must prove a retaliatory motive. Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.
There are three components to a retaliation claim. The first is that the employee engaged in protected activity. A lot of actions can qualify as protected activity, including complaining about unlawful discrimination, participating in a discrimination lawsuit as a witness, requesting accommodations for a disability, or demanding overtime wages. Howard v. Walgreen Co., 605 F.3d 1239 (11th Cir. 2010) (Title VII prohibits retaliation “when an employee ‘oppos[es] any practice made an unlawful employment practice by [Title VII]’ or ‘has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing’”); 42 U.S.C. § 12203(a) (describing protected activity in relation to the ADA); 29 U.S.C. § 215(a)(3) (permitting an employee to sue for retaliation under the FLSA if the employee “filed any complaint” about unlawful overtime or minimum wage practices).
The second requirement is that there be an adverse action. “[I]n the context of a Title VII retaliation claim, a materially adverse action ‘means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Monaghan v. Worldpay US, Inc., 955 F.3d 855 (11th Cir. 2020). “[I]t is for a jury to decide whether anything more than the most petty and trivial actions against an employee should be considered “materially adverse” to him and thus constitute adverse employment actions.” Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008). An adverse action is most often the refusal to hire a person, refusal to promote an employee, or termination of an employee.