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What's the Difference Between Types of Employment Claims?

What is the Difference Between Discrimination, Harassment, and Retaliation?

In conversation, people use the terms "discrimination," "harassment," and "retaliation" interchangeably. People use all three terms to mean that something unfair and possibly illegal happened at work. But each of these terms has a distinct legal meaning. If you're talking to an employment lawyer, or even asserting your rights at work on your own, it is useful to understand what these terms mean. 

What is Discrimination?

Discrimination happens when your employer takes an adverse employment action against you because of your membership in a protected class. 

Easy enough, right? There's a little more to it.

An adverse employment action is basically an employment action with a concrete and negative effect on your employment. It includes being denied a job, being denied a promotion, being denied a pay raise, being demoted, having your hours cut, have your wages cut, or being terminated. It usually does not include things like being generically criticized, with no harm to your position at the company, or being treated unfairly in other abstract ways. 

A protected class is a legal classification that the legislature has decided is not a fair reason for an employment decision. This includes things like your race, your gender, your religion, your sexual orientation, your disability (permanent or temporary), your age (over 40), your pregnancy, or your ethnicity. An employer cannot take any negative actions against you at work because of your membership in a subset of any of these categories. 

What is Harassment?

Harassment is unwelcome conduct in the workplace based on membership in a protected class. The conduct must be serious enough that it interferes with your ability to do your job. One-off or infrequent comments, unless they are truly appalling, are usually not enough to meet this standard.

A "quid pro quo" proposition, where your boss conditions a promotion, continued employment, or other employment benefit on submitting to their misconduct, is usually enough to meet this standard, even it only happens once. 

Otherwise, you will have to prove a "hostile work environment," which is perhaps the most misunderstood term in all of employment law. A "hostile work environment" is not just someone being mean to you: it means that you are subject to severe and pervasive unwelcome conduct based on your membership in a protected class. If someone is mean to everyone in the same way they are mean to you, they may be "hostile," but they probably are not harassing you (in a legal sense, although they are probably also a jerk). 

What is Retaliation?

Retaliation occurs when your employer takes an adverse employment action against you because you engaged in protected activity

So what counts as protected activity? 

Protected activity can include making a complaint of harassment or discrimination, on behalf of yourself or another. It includes taking job-protected medical or disability leave. It includes complaining about being asked to engage in illegal conduct, or discouraging your employer from breaking the law. It includes asking for unpaid wages or complaining that your employer is engaging in wage theft. It includes complaining to government agencies as well as internal complaints. It includes numerous other things that various laws have decided are important enough to "protect." 

Retaliation is very broad, and often easier to prove than discrimination, even though both require you to show an adverse employment action. Often, circumstances at work will change shortly after you engage in protected activity. This leads to the inference that this change happened because of your complaints or other protected activity. 

How do Discrimination, Harassment, and Retaliation Claims Overlap?

Sometimes, all three types of claims are at play. Other times, you may just have one of these claims, or none of them. 

For instance, look at this fact pattern. An older woman, Jennifer, is denied promotions because her male boss likes to promote cute, younger women to whom he is sexually attracted. He also makes frequent disparaging comments about "old" women and how Jennifer should retire and isn't useful anymore. Meanwhile, he talks about how hot some of the younger women at work are and how he wants to sleep with them. Jennifer complains to HR about her boss' comments. She then gets bad performance reviews at the end of the year and is denied a bonus. Shortly thereafter, she is fired for supposedly missing a client deadline (that she actually made). 

This is a good example of all three claims. Jennifer's boss is discriminating against her because of her age by denying her promotions, and perhaps by firing her. She is being harassed because her boss is subjecting her to a hostile work environment based on her age and gender (that she isn't a cute, younger woman). She is also being retaliated against: she was denied a bonus and then fired in short succession after making a protected complaint to HR. This is a good case.

Here's another example. An employee, John, works at an auditing firm where he learns that one of the firm's clients is stealing money from employees' 401(k) plans. He complains about it to his boss and refuses to work on the account until the firm confronts the client about the theft and fraud. John is taken off the project and the firm doesn't confront the client, but continues to take their money and sign their financials. Meanwhile, John is staffed on a very low-level project for six months and then "let go" for lack of work. He is the only one "let go." This is a good case as well. But John isn't being discriminated against (disliking fraud isn't a protected class) and isn't being harassed (there is no severe and pervasive misconduct and also, again, disliking fraud is not a protected class). 

Find Out Which Claims Might Apply to You With a Free Case Review

If you think you have been discriminated against, harassed, or retaliated against, we can help. We offer a free confidential consultation to help you understand your rights. Call us at (212) 248-7431 or contact us online to set up an appointment.

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