Are All Complaints Protected?

Retaliation sucks.  Not only does it suck, it’s illegal.  Employees have certain rights, including the right to a workplace free from illegal discrimination and harassment, and it is against the law for employers to punish employees for seeking to enforce those rights- usually.  When it comes to making complaints about your work situation, when are you protected?

The first question is whether the issue you’re complaining about is something that could make your complaint “protected activity.”  Most of the types of complaints people call us about do not give rise to protected activity situations such that the employees who made them are protected from retaliation.  The following are examples of issues where your complaint would typically NOT be considered protected:

-Supervisor or coworker is mean / a bully / difficult, in general;

-Unreasonable work expectations;

-Coworkers being lazy, bad at their jobs, or otherwise difficult to work with;

-Feeling underappreciated.


In contrast, complaints about the following are usually considered to be protected:

-Sexual harassment;

-Harassment based on race, religion, color, national origin, or age;

-Discrimination based on race, color, religion, national origin, sex, age, or disability;

-Not being paid legally under state or federal law.


In most situations, the complained-of behavior has to be illegal for a complaint about it to be considered “protected.”

So, assuming your complaint is about something where you could have legal protection from retaliation, does that mean anything bad that happens to you after your complaint is retaliation?  The answer is “no.”

In order to succeed in your retaliation claim, you need to show that you were retaliated against BECAUSE OF your protected complaint.  Having made a protected complaint does not insulate you from consequences you would have otherwise faced.  You can still be disciplined or even fired after making a protected complaint, as long as you are not disciplined or fired because of that complaint.  Whether an adverse action, such as being fired, is because of a protected complaint is a fact-specific inquiry.  A judge or jury would look at all of the circumstances, including the reason the employer gave for the adverse action and any evidence you can offer to show why the reason given is just an excuse to cover up the retaliatory motive, and make a determination as to whether the employer acted illegally.

Importantly, there are some circumstances where it is legal to fire someone BECAUSE OF a complaint that would normally be protected as a matter of law, though those situations are not common.  Imagine, if you will, an office worker who has a valid complaint about sex discrimination.  For years she’s seen less qualified men getting promotions and raises while the owners of the company make regular sexist comments about women being bad at business.  Eventually, at a company event with clients present, she snaps when a male coworker takes credit for her work and gets a promotion.  The office worker screams obscenities at the owners and storms off, in front of the entire company and clients.  It doesn’t matter that the office worker’s complaint was about sex discrimination, or even that her complaint was valid- she can be fired for the way she complained.

If you believe that you are being subjected to illegal treatment in the workplace, you have rights and it is important to know the best way to pursue those rights.  Call Gold Star Law so we can help you with your situation.