If a worker feels that they have been discriminated against or harassed by an employer, they may have a retaliation case on their hands. Employers across the country are free to decide whom they hire and when to terminate, but retaliating against workers who exercise their protected rights is prohibited. Here’s how to prove retaliation in the workplace.
What is Retaliation?
According to the U.S. Equal Employment Opportunity Commission (EEOC), retaliation involves an employer illegally retaliating against a worker for filing a complaint or reporting activities deemed to be discrimination or harassment in the workplace. This act of retaliation is essentially revenge by an employer whose adverse action may take the form of disciplinary action or termination against their worker. This action could also be considered as something that harms the employee’s mental or emotional state of being, or has a negative impact on their work environment, such as a cut in pay or demotion.
Related: How to Report Retaliation in the Workplace
Protected Activities
Though all types of retaliation in the workplace are not legally protected, there are certain laws to protect employees from retaliation. An employee or applicant who asserts their Equal Employment Opportunity (EEO) rights against retaliation is called a “protected activity”. Protected activities cover several forms of discrimination and harassment in the workplace, and may include examples such as:
- Refusing sexual advances or intervening to protect others
- Participating in an investigation regarding another employee who has made complaints of discrimination or harassment
- Asking an employer about salary information and uncovering potentially discriminatory wages
- Or, refusing any action or order that would result in discrimination.
There are several federal laws that aim at preventing discrimination both in and out of the workplace, such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. Both state and federal laws cover essentially two types of protected activities. The first is when a worker opposes any action deemed illegal by state or federal law. The second protected activity is when an employee participates as a witness or assists outside agencies in an investigation on complaints of discrimination or retaliation.
Related: Protected Concerted Activity in California
How to Have a Strong Retaliation Lawsuit Against an Employer
In a retaliation case, an employment lawyer will analyze several elements of a potential case, including any evidence of the retaliation and the damages caused to the employee as a result. First, in order to prove retaliation evidence will need to be shown that an employee experienced or witnessed illegal discrimination or harassment in the workplace, engaged in a protected activity, was responded to with adverse action from the employer as a result, and suffered damages as a result. Retaliation is unique in that as long as the employee acted in good faith regarding their complaint, it does not matter if the underlying conduct was actually discriminatory or harassment. This fact is why it is important to present evidence to an employment lawyer as to why action was taken in good faith, such as copies of offensive visuals, contact information for witnesses, and evidence that an employee, themself, filed a complaint or report of harassment or discrimination to their employer.
In regards to suing for damages, or an award of money, an employee must show that they suffered an actual loss as a result of the retaliation, such as lost wages or benefits. Key documents in proving this may include anything that shows earnings prior to the retaliation, or even medical expenses that may have been covered by previous health care benefits. Presenting these forms of evidence and proof to an employment attorney will more efficiently demonstrate that there are lost damages to be recovered in a retaliation case.
FAQs About How to Prove Retaliation in the Workplace
What are non-retaliatory and non-discriminatory reasons for terminating an employee?
Employers are free to discipline and terminate workers so long as the reasons for doing so are non-retaliatory and non-discriminatory. This entails that corrective and appropriate action was taken by an employer for any conduct deemed unacceptable or inappropriate in the workplace.
What is causation?
Causation in a retaliation case is proof that an employee was engaged in a protected activity and their employer took a materially adverse employment action. This may be difficult to prove in many instances, though there are certain types of evidence that employees may utilize to show causation. Examples of possible types of evidence may include timing – whereby there is proof that action was taken immediately after the employee engages in a protected activity, demonstrating that the employer was knowledgeable of this protected activity, and showing that there was no other reason for the adverse action.
Are there specific changes in employment that qualify as materially adverse employment actions?
Yes, there are several different types of actions that fall under this category. Examples include demotion, termination, reductions in pay, changes to employment that result in less pay or fewer responsibilities, or any other material changes in employment.
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If you or a loved one is seeking to prove retaliation in the workplace, contact us. Get your free consultation with one of our California Employment Attorneys today!