Protected Activities and Constructive Discharge: Retaliation for Engaging in Whistleblowing or Other Legal Rights

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Protected Activities and Constructive Discharge: Retaliation for Engaging in Whistleblowing or Other Legal Rights

Protected Activities and Constructive Discharge: Retaliation for Engaging in Whistleblowing or Other Legal Rights


Employees have the right to engage in certain protected activities without fear of retaliation from their employers. These activities include whistleblowing, reporting illegal conduct, filing complaints, or exercising other legal rights. However, there are instances where employers unlawfully retaliate against employees for engaging in these protected activities, leading to constructive discharge. In this article, we will explore the concept of protected activities, the consequences of retaliation, and how it can contribute to constructive discharge.

Understanding Protected Activities
Protected activities encompass various actions in which employees engage to assert their legal rights or report wrongdoing. Some common examples include:

a) Whistleblowing: Reporting illegal activities, violations of laws or regulations, or other misconduct within the organization to appropriate authorities, such as government agencies or law enforcement.

b) Reporting Discrimination or Harassment: Making complaints or reporting instances of discriminatory treatment or workplace harassment based on protected characteristics, such as race, gender, religion, disability, age, or sexual orientation.

c) Filing Complaints: Initiating formal complaints or participating in investigations related to workplace violations, including wage and hour issues, safety concerns, or violations of labor laws.

d) Exercising Rights under Employment Laws: Taking actions protected by employment laws, such as requesting reasonable accommodations for disabilities, exercising family and medical leave rights, or engaging in union activities.

Retaliation for Protected Activities
Retaliation occurs when employers take adverse actions against employees in response to their engagement in protected activities. Some common forms of retaliation include:

a) Termination or Demotion: Employers may unjustly terminate or demote employees who engage in protected activities as a means of punishing or silencing them.

b) Negative Performance Reviews: Employers may provide unjustifiably negative performance evaluations to employees who assert their legal rights or report violations.

c) Reassignment or Isolation: Employers may isolate or reassign employees to less desirable positions or locations as a form of retaliation.

d) Harassment or Hostile Work Environment: Employers may subject employees to increased scrutiny, hostility, or harassment in an attempt to discourage them from engaging in protected activities.

Constructive Discharge and Retaliation
Constructive discharge occurs when the working conditions become so intolerable due to retaliation or other factors that an employee is effectively forced to resign. Retaliation can be a significant factor contributing to a hostile work environment and ultimately lead to constructive discharge.

When an employer retaliates against an employee for engaging in protected activities, it creates a retaliatory environment that makes it difficult or impossible for the employee to continue their employment. The employer’s actions create an atmosphere of fear, intimidation, and frustration, leaving the employee with no reasonable choice but to resign.

Proving Constructive Discharge due to Retaliation
To establish a claim of constructive discharge due to retaliation, employees must meet certain legal standards. They need to demonstrate that:

a) They engaged in a protected activity: Employees must establish that they participated in a legally protected activity, such as whistleblowing or reporting violations.

b) Adverse actions were taken against them: Employees must show that the employer took adverse actions against them in response to their engagement in protected activities.

c) The working conditions were intolerable: Employees must prove that the working conditions became so intolerable that a reasonable person in their position would be compelled to resign.

d) A causal connection between the retaliation and resignation: Employees must establish a direct link between the retaliation and their decision to resign.

Seeking Legal Remedies
Employees who believe they have been constructively discharged due to retaliation have legal remedies available to them. They can file a complaint with relevant government agencies, such as the Equal Employment Opportunity Commission (EEOC) or the appropriate state labor department. Alternatively, they can pursue a lawsuit against the employer to seek compensation for damages suffered.

It is essential for employees to consult with an experienced employment law attorney who can assess the merits of their case, gather evidence, and guide them through the legal process. Attorneys can help employees assert their rights, negotiate settlements, or represent them in court if necessary.


Engaging in protected activities is a fundamental right for employees, and employers are prohibited from retaliating against them for doing so. Retaliation can lead to a hostile work environment, ultimately resulting in constructive discharge. By understanding protected activities, recognizing signs of retaliation, and seeking legal remedies, employees can protect their rights and hold employers accountable for their actions. Consulting with an experienced employment law attorney is crucial in navigating the complex legal landscape and building a strong case for constructive discharge due to retaliation.

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We are not afraid to litigate and take cases to trial, and have trial experience. We are relentless and we win. Clients also have first-hand access to our attorneys who are available day or night and will even provide you with their cell phone numbers. Case updates come straight from your attorney rather than paralegals or staff members.

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