Retaliatory Discharge

Retaliatory Discharge in Illinois Explained

Video by Attorney Kevin O'Flaherty
Article written by Illinois Attorney Kevin O'Flaherty
Published on
May 6, 2019

In this article, we will explain Retaliatory Discharge law in Illinois, including answering questions such as “what is Retaliatory Discharge?” and “Can an Employee be Fired for Reporting Misconduct?” as well as explaining How To Prove Retaliatory Discharge.  

For more, see our article Wrongful Termination in Illinois Explained.

What is Retaliatory Discharge?

Retaliatory Discharge is a form of wrongful termination relating to retaliation or revenge against an employee for an act not related to their work performance.  This can include behavior such as filing a workers comp claim or requesting for legally-required reimbursement.  This behavior is the legal right of an employee, so an employer firing an employee for this behavior may be considered retaliatory.  Retaliatory Discharge can also occur in severe situations, such as an employee being fired after reporting sexual harassment in the workplace or being a “whistleblower” who exposed illicit or illegal activity in the workplace.  

An employee is also protected when refusing to carry out commands by their employer that is illegal or that they reasonably believe to be discriminatory.  This situation could arise iif an employer tells their employee to deny service to someone or remove  client based on their religion, sexual orientation or race.  For example, if an employee of a restaurant is told by their boss to kick out a family for speaking Spanish, and the employee refuses this because they reasonably believe it is discrimination, that action would be protected and, if they were terminated because of their refusal, that may be considered retaliatory discharge.  

Retaliatory Discharge


Can an Employee Be Fired for Reporting Misconduct?

Reporting misconduct in the workplace is a protected action under Illinois law.  This includes directly reporting misconduct yourself as well as being involved in the investigation as a witness or other participant.  An employee cannot be fired for participating in misconduct investigations, even if the investigation is inconclusive or not yet decided.  An employer who fires an employee for participating in an investigation could be considered interfering with justice, even if the employer does not believe the investigation is reasonable or correct.  This does not mean that an employee involved in an investigation cannot be fired for any reason whatsoever.  They can still be fired for other reasons.  However, if the termination is challenged, the employer would have to prove that the termination was not connected to the investigation.

For a related article, please read Are Workplace Sexual Harassment Protections Required in Illinois?”

How to Prove Retaliatory Discharge

An employee may maintain a retaliatory discharge claim by establishing one the following:

  • That the employee was participating in a protected activity and that the termination was directly related to the protected activity. This can include direct evidence such as in-writing declarations that the employee is being fired because of their behavior, or circumstantial evidence such as proving an employer’s past with prejudice behavior. Direct evidence is much more significant in proving the termination was wrongful.
  • That the Employee Was Fired Because He or She Refused to Take a Discriminatory Action: If an employee believes they have been fired for refusing to act with wrongful discrimination, they must prove that they believed the act to be discriminatory and refused to act because of that belief.

In many situations, an employer is not required to provide any reason for termination and can fire an employee without any declared reason whatsoever.  However, if an employer is later accused of retaliatory termination, they may have to prove that the termination was not related to any protected behavior.  They may be able to point to the employee’s poor work performance or their negative behavior in the workplace as evidence that they were terminated for reasons beyond their protected actions.

For more related reading, see out article on  Changes to Illinois Employment Law in 2019.


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