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Interpersonal conflicts occur in every workplace. But retaliation is not about working in a difficult environment–or even dealing with a terrible boss. Rather, it is a legal concept that expressly relates to employee rights under Massachusetts and federal laws.
Basically, an employer is not allowed to punish an employee who complains about illegal treatment at work.
This includes, but is not limited to, complaints arising from the following situations:
In this context, a “complaint” does not necessarily mean that the employee has filed a lawsuit or gone outside the company with their concerns. Anti-retaliation laws protect employees who utilize internal human resources and dispute resolution procedures as well.
As for what specific acts constitute retaliation, obviously an employer cannot fire an employee who complains about illegal treatment. But most retaliation cases are not so blatant. Retaliation often takes more subtle forms, such as reducing an employee’s hours or pay, assigning them to a less-desirable post, or simply threatening to punish them if they continue to pursue their complaint.
A critical thing to understand about retaliation is that it is considered a separate legal offense from any underlying discrimination or wage hour violation. In other words, even if the employer did not commit the actual offense alleged by the employee, it may still be held liable for retaliation. As explained in a 2016 decision, “An employee bringing a retaliation claim is not complaining of discriminatory treatment as such, but rather of treatment that ‘punish[es]’ her for complaining of or otherwise opposing such discriminatory treatment.”
As explained by the Supreme Judicial Court, to bring a retaliation claim an employee must satisfy at least four threshold requirements:
With respect to the final requirement–forbidden motive–the courts have said employees may rely on “indirect evidence” since direct evidence of retaliation is often hard to come by. However, the employer may also introduce evidence that its adverse action had some legitimate motive other than retaliation. The employee may then attempt to rebut this explanation, in effect proving it was nothing more than a “pretext” to mask the employer’s illegal retaliation.
Anti-retaliation laws are deliberately broad in scope and application. As the U.S. First Circuit Court of Appeals in Boston has put it in relation to the anti-retaliation provision of Title VII, “we have interpreted the provision as casting a very broad protective cloak.” Among other things, anti-retaliation laws protect job applicants as well as current and former employees.
At the state level, MCAD and the Massachusetts Attorney General’s Office has made it abundantly clear that anti-retaliation laws protect all workers “irrespective of immigration status.” This is important because some employers may threaten to report an employee to immigration authorities in retaliation for reporting illegal conduct, in particular wage and hour violations. But as the Attorney General’s Office recently reaffirmed, all workers, irrespective of immigration status, are protected by the Commonwealth’s labor and employment laws.
Resource about retaliation provided by the Equal Employment Opportunity Commission (EEOC).
EEOC webpage with information on the process around reporting retaliation and what constitutes retaliation. This also notes the federal laws which provide protection against retaliation.
Provides background about retaliation and what events qualify as retaliation. Also has links to Anti-Retaliation fact sheets in various foreign languages.
https://www.mass.gov/service-details/protections-against-retaliation
One of the Massachusetts laws which provides protection against retaliation.
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter149/Section148A
Another Massachusetts law which provides protection against retaliation.
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter151/Section19