How do you Prove Retaliation in the Workplace?

It is never nice to get fired from your job. It makes finding work in the future much more difficult too. Often it is difficult to understand the reasons why you were dismissed, and the employer is not always very forthcoming with a specific reason. They don’t want to give you any grounds to feel that some form of discrimination may be behind your dismissal. If discrimination is a factor, then you can sue for wrongful termination.

How do you Prove Retaliation in the Workplace?
[image: pexels by marc mueller]

Nearly half of all complaints of discrimination to the Equal Employment Opportunity Commission (EEOC) over the past decade have been for one specific type of complaint, retaliation.

Retaliation is when you have suffered a negative job action because you complained about some form of harassment or discrimination.

It doesn’t have to be termination of your employment, it could also be missing out on a promotion, being assigned fewer hours, etc.

You are legally protected from retaliation if you complain about discrimination or harassment.

Although employers cannot punish employees for asserting their rights, retaliation still happens.

To be successful in a lawsuit for retaliation, you must prove three things:

1. You engaged in a protected activity.

2. Your employer acted against you.

3. There is a causal link between your activity and your employer's action (in other words, your employer acted against you because of your activity).

Protected Activity

All laws that prohibit discrimination also prohibit retaliation against employees who engage in "protected activity" under these laws.

There are two types of protected activity:

Opposition – if an employee complains about any kind of discrimination, harassment, or retaliation, they are engaging in a protected activity. The protection applies to the employee making the complaint plus anyone participating in the investigation of the complaint. If you tell your employer that they are engaging in discrimination or harassment, that employee is protected from retaliation. This could include someone who was a witness to an event of discrimination or harassment, or someone who refuses to carry out an instruction from their employer because they believe it to be discriminatory or a form of harassment.

Participation – if you file a charge of discrimination with the EEOC or a similar state agency, take part or help in an agency investigation, or file or take part (for example, as a witness) in a discrimination or harassment lawsuit, you are also protected from retaliation.

Negative Action

Any action that might deter a reasonable employee from making a complaint or otherwise engaging in protected activity is considered to be a negative action. This can include actions like a demotion, discipline, firing, salary reduction, negative evaluations, transfer, change in job assignments, change in job duties, change in shift or change in other terms and conditions of employment.


You must also show that the protected activity and the negative action are connected.

It can be difficult to prove causation unless the employer admits it. You will need to have one or more of the following connections:

Timing – if the negative action occurred around the same time as the complaint, it is unlikely to be a coincidence.

Knowledge – you need to be able to prove the person who took the negative action against you knew about the complaint or other protected activity. 

Lack of other explanations – if you can show there was no other reason for the negative action to have occurred you are strengthening your argument. For example, if you get a pay cut shortly after making a complaint and the employer says it is part of pay cuts affecting many employees, but no other employees had suffered a pay cut, the employer’s reason doesn’t seem believable.

If you feel you are suffering workplace retaliation, you should consult with an employment lawyer. Retaliation can make your work life miserable and lead to job loss. An experienced attorney will find the best way to protect you and negotiate a resolution with your employer. 

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