What is Retaliation?

Under both Federal and Wisconsin law, you have the right to oppose discrimination in your workplace and the right to make or assist others in making complaints of discrimination. Whether you act formally or informally, your employer cannot fire or otherwise punish you for engaging in protected activity. Employees who object to discrimination in the workplace belong to a protected class.

I. Federal Law

Title VII of the Civil Rights Act of 1964 specifically prohibits employers from retaliating against employees who oppose discrimination under the statute:

"It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . to discriminate against any individual . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."

42 U.S.C. § 2000e–3.

If you complain to your employer about discrimination based on race, color, religion, sex, or national origin, including harassment, at the workplace, your employer cannot take adverse action against you because of your complaint. The same is true if you file a formal complaint of discrimination or testify about it as a witness in a co-worker's formal discrimination proceeding.

Other Retaliation Provisions: A variety of federal employment statutes contain similar, anti-retaliation provisions, protecting employees who assert rights under those statutes. These include the Americans with Disabilities Act, Family & Medical Leave Act, the Age Discrimination in Employment Act, and the Equal Pay Act.

The Fair Labor Standards Act also contains an anti-retaliation provision, making it illegal to "discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA]". 29 U.S.C. § 215(a)(3)

II. Wisconsin Fair Employment Act

The Wisconsin Fair Employment Act, like Title VII, defines unlawful retaliation to encompass two distinct categories:

(1) informally or internally opposing discriminatory practices in the workplace

(2) filing a complaint or testifying or otherwise assisting someone else with filing a complaint under the Wisconsin Fair Employment Act.

One major difference between WFEA and Title VII: a plaintiff needs only prove that an adverse action was motivated in part by the employee's protected complaint. Title VII requires proof that the protected activity was the but-for cause of the adverse action.