Types of Actions That Are Considered Unlawful Workplace Retaliation
- kenwat75
- 2 days ago
- 10 min read
Unlawful workplace retaliation occurs when an employer, or someone acting on their behalf, takes an adverse action against an employee because that employee has engaged in a "protected activity." This isn't merely about feeling "punished" for a disagreement; it's about a direct link between exercising a legal right and suffering a negative consequence.
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Unfortunately, reprisal is a common occurrence in North America. In this guide, we'll outline common types of unlawful retaliation, ranging from wrongful terminations to subtle intimidation tactics warranting a claim of constructive dismissal on many occasions. If you happen to be in Florida, and is currently experiencing retaliation, a Florida employer retaliation lawyer can help protect your rights. There are laws in place designed to protect the vulnerable, and to ensure fairness, but effective enforcement is crucial.
I. Legal Protections Against Unlawful Retaliation
Beyond the well-trodden paths of common law claims for wrongful dismissal or constructive dismissal, Ontario's legislative framework independently and explicitly prohibits workplace reprisal. Indeed, several key statutes provide robust, dedicated protections against such adverse actions, of which the most prominent and frequently invoked include:
The Employment Standards Act, 2000 (ESA):
This Act, particularly s. 74(1) is the bedrock of minimum employment conditions in Ontario. It prohibits employers from penalizing, intimidating, dismissing, or threatening an employee for, among other things:
Inquiring about their ESA rights (e.g., minimum wage, overtime, vacation pay, leaves of absence).
Requesting compliance with the ESA.
Filing a complaint under the ESA.
Participating in an ESA proceeding (e.g., giving information to an employment standards officer).
Exercising or attempting to exercise any other right under the ESA.
Disclosing or asking about another employee's rate of pay for equal pay purposes.
Learn More: ESA - Part XVIII - Reprisal prohibited
The Ontario Human Rights Code (the "Code"):
The Code is designed to protect individuals from discrimination and harassment based on enumerated grounds such as age, religion, disability, sex, gender, age, family status, and sexual orientation. Reprisal under the Code means an action or threat intended as retaliation for:
Claiming or enforcing a right under the Code.
Participating in human rights proceedings.
Refusing to infringe on another person's human rights. Notably, you don't necessarily need to have filed a formal complaint for reprisal to be established under the Code; simply asserting your rights, even internally, can trigger protection.
The Occupational Health and Safety Act (OHSA):
This vital piece of legislation ensures safe workplaces. The OHSA protects workers from reprisal if they:
Act in compliance with the OHSA or its regulations.
Seek enforcement of the OHSA (e.g., reporting safety concerns to a supervisor or the Ministry of Labour).
Refuse to work in unsafe conditions (the "right to refuse unsafe work").
Participate in health and safety committees.
Cooperate with Ministry of Labour investigations or provide testimony.
Learn More: OHSA - Reprisals Against Workers by Employers
II. What Kinds of Actions Constitute Unlawful Retaliation?
The scope of what can be considered retaliatory is broad and not limited to overt dismissal. While termination is certainly a prime example, reprisal can manifest in many subtle and insidious ways.
Adverse Employment Actions: Tangible Harm
An "adverse employment action" is any significant negative change to your job terms or conditions that could discourage someone from reporting workplace issues. Courts recognize these actions as strong evidence of retaliation.
Common examples include:
Termination: Being fired shortly after filing a complaint is a classic red flag. Employers may try to disguise the termination as a performance issue, but timing and circumstances often speak volumes.
Demotion or reduced responsibilities: A sudden reduction in pay, a less desirable shift, a significant alteration of job duties, or a demotion can all be forms of reprisal if linked to a protected activity. If you’ve always managed a team or overseen major projects and suddenly get sidelined without any reason, it’s not just a coincidence. Such demotions can signal retaliation.
Forced transfer: Getting moved to a less desirable department, role, or physical location—especially after speaking up—can be a way to punish or isolate the employee.
Pay cuts or benefit reductions: Reducing salary, commissions, bonuses, or benefits after whistleblowing or filing complaints is often unlawful. These are more than financial setbacks; they are signals meant to discourage others.
Unpaid suspension: Being placed on leave without clear cause or explanation can be retaliation disguised as discipline.
Negative Performance Reviews or Disciplinary Actions: If an employee suddenly receives a critical performance review, or faces disciplinary measures for minor infractions, shortly after exercising a protected right, this could be indicative of retaliation. The timing is often a critical piece of evidence.
Creation of a Hostile Work Environment: Making an employee's work life unbearable through increased scrutiny, isolation, unwarranted criticism, or even harassment can amount to reprisal, potentially leading to a claim of constructive dismissal.
Denial of Opportunities: Being passed over for promotions, training opportunities, or desirable assignments without a legitimate, non-retaliatory reason can also be a form of unlawful reprisal.
Threats and Intimidation: Even the threat of any of the above actions, made to dissuade an employee from exercising their rights, can constitute unlawful reprisal.
These types of adverse actions are relatively straightforward to identify and document. Because they involve tangible consequences, they often form the backbone of retaliation claims in legal proceedings.
Hostile Work Environment: Intolerable Conditions
Not all forms of retaliation are as direct as being fired or demoted. Sometimes, the response to whistleblowing or filing a complaint is more psychological. A hostile work environment can emerge where the workplace becomes unbearable due to mistreatment, exclusion, or harassment. This retaliation can come from supervisors or even coworkers encouraged or allowed to act out.
To be considered retaliatory, the hostile environment must meet certain criteria:
Severe or pervasive conduct that interferes with the employee's ability to work effectively
Clear connection between the hostile behavior and the employee’s protected activity
Abusive and intolerable atmosphere from both an objective and subjective point of view
Examples include:
Bullying or harassment related to the employee’s complaint—this could involve name-calling, gossip, or even physical intimidation
Sabotaging work or damaging equipment to make the employee seem incompetent or unproductive
Unfair scrutiny or being micromanaged to a degree that wasn’t present before raising concerns
Over time, these behaviors can break down an employee's morale and make them feel they have no choice but to quit—a situation known legally as "constructive discharge." Even though the person technically resigns, the law may still consider it retaliation if the conditions were unbearable.
Denial of Opportunities: Hindering Career Growth
Career progression is important, and when that growth is suddenly blocked after engaging in a protected activity, it’s a big red flag. Retaliation isn’t always about punishment—it can also be about exclusion.
Here are some ways it can manifest:
Denied promotions or raises that were expected based on past performance and feedback
Excluded from training or professional development opportunities that other employees continue to receive
Left out of meetings or projects that are essential for visibility and advancement within the company
Given negative performance reviews that don’t reflect your actual work or contradict earlier evaluations
Refused support or resources needed to do your job—like being denied access to software, staff, or tools
All of these actions create invisible barriers that slow down or halt career momentum. When these changes closely follow a protected action—such as filing a harassment complaint—they can indicate retaliation.
Intimidation and Threats: Silencing Employees
Some employers resort to scare tactics when they feel threatened by employees who speak up. These intimidation methods can be subtle or blatant but are all designed to silence and control.
Forms of retaliatory intimidation include:
Verbal threats about job security or future opportunities
Written warnings or performance improvement plans that are baseless or exaggerated
Subtle suggestions that the employee should “move on” or “keep quiet”
Gossip or false rumors spread to damage the employee’s reputation
Filing false complaints against the employee to make them appear problematic
These behaviors often serve to warn others in the workplace about the “consequences” of coming forward. It’s a toxic cycle that not only harms the targeted employee but creates a culture of fear and silence.
III. The Employer's Burden: Shifting the Evidentiary Scales
It is crucial to understand that if an employee successfully establishes a prima facie case of reprisal – meaning they can demonstrate that an adverse action was taken by the employer, and that this action followed the employee's engagement in a protected activity – the evidentiary burden often shifts significantly to the employer. This is not merely a procedural formality; it represents a fundamental principle of fairness and a recognition of the inherent power imbalance in the employment relationship.
Once a prima facie case is established, the employer is then required to rebut the presumption of retaliation. This requires the employer to prove, on a balance of probabilities, that their actions were not retaliatory. The "balance of probabilities" is the standard of proof applied in most civil litigation in Ontario, including employment law matters. It means that the employer must demonstrate that it is more likely than not that their actions were based on legitimate, non-discriminatory, and non-retaliatory reasons.
This is a substantial hurdle for employers. They cannot simply offer vague or unsubstantiated assertions of unrelated business reasons. Instead, they must adduce credible evidence to demonstrate a legitimate, non-retaliatory motive. This evidence might include:
Documentary Evidence: Performance reviews predating the protected activity, showing a pre-existing pattern of performance issues; documented warnings or disciplinary actions unrelated to the protected activity; evidence of a broader restructuring or downsizing affecting other employees; or contemporaneous notes or records explaining the rationale for the adverse action.
Witness Testimony: Testimony from supervisors, managers, or other employees who can corroborate the employer's stated reasons for the adverse action and refute the allegation of a retaliatory motive.
Comparative Evidence: Evidence that other employees who did not engage in protected activity were treated similarly, demonstrating that the adverse action was not unique to the employee who asserted their rights.
The timing of the adverse action is often a critical piece of circumstantial evidence. If the adverse action occurs shortly after the employee engaged in a protected activity, this temporal proximity can strengthen the prima facie case and make it more difficult for the employer to discharge their burden. However, temporal proximity alone is rarely sufficient to establish retaliation; it must be coupled with other evidence suggesting a causal link.
In essence, the employer must present a clear, convincing, and well-documented narrative that persuasively demonstrates that their actions were motivated by legitimate business considerations, wholly independent of any retaliatory intent. The burden is not insurmountable, but it requires a robust and defensible justification, supported by concrete evidence, to overcome the presumption of retaliation.
IV. Protecting Your Rights: Recognizing and Responding to Unlawful Retaliation
Retaliation can be hard to spot at first. Maybe you feel people are treating you differently, or that new expectations have popped up without warning. It’s easy to second-guess yourself or assume it’s just workplace stress. But when these changes happen shortly after filing a complaint or reporting wrongdoing, don’t ignore your instincts.
If you believe you are experiencing unlawful workplace retaliation in Ontario, swift and informed action is paramount:
Document everything: Keep meticulous records of all incidents, including dates, times, specific actions, who was involved, and any witnesses. Save relevant emails, texts, memos, performance reviews, and other communications. Even casual conversations or notes matter.
Report internally (if you feel safe doing so): If your employer has a formal policy on workplace harassment or discrimination, consider following it to report the reprisal internally. Use official channels like HR or anonymous reporting systems. This builds a timeline that can support your claim later.
Know the deadlines: Retaliation claims could be time-sensitive. Missing a deadline can limit your legal options.
Consult with an employer retaliation lawyer: This is perhaps the most crucial step. An experienced employment lawyer can assess your situation, advise you on your rights, and guide you through the appropriate legal channels (e.g., filing a complaint with the Ministry of Labour, the Human Rights Tribunal of Ontario, or the Ontario Labour Relations Board, or initiating a wrongful dismissal claim). Don’t wait until things spiral—early intervention can make a big difference.
Do Not Resign Prematurely: Resigning without legal advice can weaken your claim, especially if your goal is to pursue a constructive dismissal claim or seek reinstatement.
V. Conclusion
Unlawful workplace retaliation comes in many forms—from getting fired to being frozen out of meetings or unfairly criticized. If you’ve faced sudden changes at work after reporting wrongdoing, it’s important to speak up, seek support, and consider legal guidance. You deserve a workplace that values fairness, transparency, and respect.
In a fair and just society, employees should feel empowered to uphold their rights without fear of adverse consequences. Unlawful workplace retaliation undermines this fundamental principle. By understanding the types of actions that constitute reprisal and knowing your legal avenues for recourse, you can better protect yourself and contribute to a more equitable and respectful working environment for all.
Above all, don’t suffer in silence. Retaliation is a serious issue that affects not just individuals but workplace culture overall. By standing up, you’re not only defending yourself—you’re setting a precedent that unethical behavior won’t be tolerated.
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You may want to consult with an experienced employment law firm, such as HTW Law, to learn about your employment law rights in case of disability discrimination to ensure that your rights are fully protected. By doing so, you can ensure that you receive fair compensation for the actionable discrimination and safeguard your employment rights.
With the right legal support, employees can navigate the challenges of unfair practices and work towards a more equitable and respectful work environment.
You don't have to fight the battle alone. Speaking with an employment lawyer who is familiar with the laws and intricacies regarding disability discrimination will go a long way. If you are in doubt, it's essential that you reach out for help as soon as possible right away.
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Author Bio:
Ken Wat has been an avid writer since his school days. This passion for writing combined with his background in law made him the writer he is today. He loves to break down complex legal jargon into something that the average Canadian can easily understand. His work has been published on numerous sites across the internet. Ken hopes to become a distinguished lawyer one day and start his own practice
