Elements of Unlawful Retaliation

Employees may have a retaliation claim against their employer who acts adversely because their employee asserted certain rights provided by Arizona or federal law. In some cases, only an unlawful termination will give rise to a retaliation claim, while others only require some type of employment discrimination. The exact claim will depend on the employee’s protected conduct and what action the employer took in response to this conduct.

Arizona’s Employment Protection Laws

A.R.S. § 23-1501 protects employees from retaliatory terminations for engaging in certain types of conduct. If an employee does any of the following, the employer cannot fire them in retaliation:

  • The employee refuses to do something that violates Arizona law.
  • The employee engages in whistleblowing by disclosing to a supervisor or government agent that someone at the company is violating Arizona law. Retaliation is prohibited even if no illegal activity is actually occurring, but the employee must have a good faith belief that Arizona laws are being violated.
  • The employee exercises their rights under workers’ compensation laws. This includes not only filing a workers’ compensation claim but also testifying to support a coworker’s claim.

This statute protects many other rights and responsibilities, including serving on jury duty, the right to vote, and the right to free choice with regard to non-membership in a labor organization.

Retaliation Claims Not Based on Termination

Retaliation can involve acts other than termination. Perhaps your employer has threatened you, passed you over for a promotion, or otherwise discriminated against you in retaliation after you asserted your legal rights. If this occurs, you may have a claim under a few different federal and state laws.

First, you may still have wrongful termination—even if you weren’t actually fired—if you felt compelled to resign. This is known as a constructive discharge.

In Arizona, you can claim constructive discharge in two ways. The first occurs when you encounter difficult working conditions that would compel a reasonable person to resign their position. However, you can only claim this type of constructive discharge if you either notify your employer of the difficult conditions in writing and give them 15 days to respond, or if your employer has waived their right to written notice. A.R.S. § 23-1502.

The other type of constructive discharge requires the employer to engage in outrageous conduct, such as sexual assault, threats of violence, or a continuous pattern of discriminatory harassment. No notice is required to claim this type of constructive discharge.

An employee may claim other types of retaliation when specifically provided for by statute. An example of this type of retaliation would be if you complained to the Equal Employment Opportunity Commission or Arizona Civil Rights Division about workplace discrimination based on a protected characteristic. If your employer retaliated after your made your complaint, they have violated federal law.

Talk to an employment law attorney to learn more about potential retaliation claims and how to pursue your legal remedies.

Chernoff Law handles business and employment law matters throughout Arizona. Contact us to discuss your case with an experienced business litigation attorney.

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