Colorado Workplace Retaliation Attorney

You’re at work, doing your job, and something happens – something that you know is wrong. Maybe your supervisor made inappropriate comments to you, or you feel that you missed a promotion because of your age or because you are disabled. Maybe you observe your employer cutting corners when it comes job safety, or the overtime you worked hasn’t been paid.

Perhaps none of this happened to you, personally, but you observed it happening to another employee. Either way, you decide to report what happened and as a result, your employer retaliates by firing you or subjecting you to some other type of negative employment action. You end up penalized for doing the right thing, wondering how you will continue to support yourself and the people who depend on you.

What Is Workplace Retaliation?

Under federal and Colorado anti-discrimination laws, wage laws, and whistleblower laws, retaliation occurs when an employer takes a materially adverse action against an employee who engages in a “protected activity.” In general, an employee engages in a protected activity when they:

  • Participate in the federal or state employment law process, or
  • Oppose an employer’s conduct that violates federal and Colorado employment law.

An employee participates in the employment law process when they:

  • File a complaint with a federal or state entity about a perceived employment law violation,
  • Report a perceived employment law violation to an employer,
  • Participate in an official investigation of a perceived employment law violation, or
  • Participate in an internal investigation of a perceived employment law violation.

An employee opposes conduct made illegal under federal and Colorado employment law when they:

  • Report or threaten to report an employer’s perceived violation of federal or Colorado employment law regarding themselves or another employee,
  • Provide information in an employer’s internal investigation into a perceived employment law violation,
  • Refuse to obey an order or instruction that they believe to be illegal under federal or Colorado employment law,
  • Advise an employer on employment law compliant practices,
  • Talk to other employees to gain information or gather evidence about a potential employment law claim,
  • Make a reasonable request for accommodation concerning disability or religion, or
  • Resist sexual advances or intervene to protect another employee against unwanted sexual advances.

What Actions Constitute Retaliation

Under the law, for retaliation to be actionable, it must be “materially adverse.” The employer’s action must be significant enough to have deterred a reasonable person from engaging in the protected activity in question. Whether retaliation exists depends on the circumstances of each case. Actions that are retaliatory in one case may not be retaliatory in another because of differing circumstances. That being said, the following actions can be indicative of retaliation:

  • Failure to hire
  • Failure to promote
  • Termination
  • Suspension
  • Denial of benefits
  • Threats, warnings or reprimands that are work related
  • Poor evaluations
  • Transfer to less desirable job duties or work locations
  • Closer supervision or scrutiny than is applied to other employees
  • Engaging in verbal or physical abuse that is materially adverse, but not severe enough to constitute a hostile work environment

Actions or conduct that are simply petty or trivial are not materially adverse because they would not reasonably dissuade a person from engaging in a protected activity. For example, a transfer from an office to a cubicle or a short delay in reimbursement of non-significant business expenses does not rise to the level of retaliation.

How Do You Prove A Claim Of Retaliation?

In a case of retaliation, an impacted employee must show:

  • They engaged in a protected activity;
  • Their employer took a materially adverse action; and
  • The protected activity caused the materially adverse action.

Regarding the protected activity causing the materially adverse action, the employee must show that “but for” a retaliatory purpose, the employer would not have taken the adverse action. In other words, the materially adverse action would not have occurred without retaliation.

Evidence that supports a claim of retaliation includes, but is not limited to:

  • The employer’s own words,
  • Close timing between the protected activity and the materially adverse action,
  • The employee was disciplined for an infraction that normally goes undisciplined,
  • Another employee who did not engage in a protected activity was not disciplined, or was not disciplined as severely as the complaining employee, or
  • The employer’s reason for the adverse action is demonstrated to be false.

An employer will often offer a non-retaliatory reason for the adverse action which may include:

  • They were not aware that the employee was engaged in a protected activity.
  • There was a non-retaliatory motive for the employer’s adverse action, such as:
    • Inadequate performance
    • Insufficient qualifications
    • Misconduct, such as poor attendance, insubordination, dishonesty, theft, etc.
    • Reduction in job force
  • Similarly situated employees who did not engage in a protected activity were treated the same as the employee in question.

If the employer offers a non-retaliatory reason for the adverse action, the employee must show that this reason is simply a pretext for retaliation. If the employee does so, it may be inferred that retaliation motivated the employer’s actions.

Available Remedies for Workplace Retaliation

A victim of retaliation has several remedies available to them that can help them to recover the damages caused by the employer’s adverse actions. These include:

  • Back pay
  • Reinstatement
  • Hiring
  • Promotion
  • Front pay
  • Punitive damages

Workplace retaliation law is complex, and employers will often make every effort to fight retaliation charges made against them. At Marathon Law, LLC, we use our knowledge of workplace retaliation law and our experience in handling workplace retaliation cases to get the results that our clients deserve. Contact us for a free, confidential consultation at 303-704-1222, or via our website contact page.