Speak to an attorney

How to Prove Retaliation

written by Daniel Bryant

statuette of Justice holding balanced scales

What is retaliation?

Retaliation occurs when an employer takes an adverse action against you because you participated in protected activity. In order to assert your rights, you need to protect them. The purpose of this blog is to generally explain what can constitute unlawful retaliation, how to prove that you have been retaliated against, and what damages you can potentially recover. 

“Protected activity” is very broad. A non-exhaustive list of protected activities includes, but is not limited to, the following:

  • Refusing to follow orders that would result in discrimination
  • Filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or a similar agency
  • Assisting in an EEOC or agency investigation
  • Participating in any manner in an internal investigation, proceeding, or hearing involving allegations of discrimination
  • Filing or participating in a discrimination lawsuit
  • Witnessing an EEOC charge, complaint, investigation, or lawsuit
  • Communicating with a manager or a supervisor about employment discrimination
  • Opposing discrimination in the workplace (even if it is not you directly who has been discriminated against)
  • Resisting sexual harassment or stepping in to protect others from it
  • Talking about wages with fellow employees or supervisors, regardless of a union’s involvement

Retaliation can negatively impact the trajectory of your career, as it can result in the loss of your job, demotion or being passed over for promotion, job reassignment, or cuts in hours or wages. 

Proving unlawful retaliation can make sure you receive the compensation you deserve — but it is not as easy. It requires you to prove 3 components, and failure to prove just one of these items can end in your case being tossed out.

The 3 components of retaliation

In order to prove retaliation, you have to show the following 3 components to be true:

1. You participated in a protected activity or refused to obey an illegal act

There are 2 types of retaliation: retaliation to opposition and retaliation to participation.

Retaliation to opposition refers to retaliating against an employee who has refused to to obey a discriminatory order and can also be applied to employees complaining about alleged discrimination they have experienced or others have experienced, picketing to oppose discrimination, and threatening to file a discrimination charge.

Retaliation to participation focuses on retaliation against employees who have engaged in a protected activity, such as filing a charge of discrimination, opposing unlawful conduct (or testifying about said unlawful conduct), and participating in an investigation, proceeding, or hearing about the unlawful conduct.

If you have done either of these things, then you can continue to the next component.

2. Your employer took adverse action against you

You need to prove that your employer took adverse action against you. Adverse action can come in several forms, including but not limited to:

  • demotion
  • suspension
  • termination or firing
  • failure to promote
  • reassignment to a position with vastly different responsibilities or requirements
  • a decision that causes a significant change in benefits, such as a reduction or an increase in work hours

Verbally abusing employees who participated in a protected activity or refused to obey an unlawful act and thus creating a hostile work environment may also be constituted as an adverse action. 

3. There is a connection between your employer’s adverse action and your protected activity

Proving causation (that is, the proof that your participation in the protected activity triggered your employer’s adverse action) is one of the most difficult parts to prove, as these cases typically rely on circumstantial evidence.

It is rare for an employer to directly state or even admit that you were demoted, fired, or suspended because you engaged in a protected activity. Even if they have, it’s your word against the employer’s word, which was probably not recorded.

You must make the connection between the adverse action and the protected activity, even though there may not be a direct link. 

For example, if an individual who is qualified under the Americans with Disabilities Act requests a reasonable accommodation is transferred to a different job after making that request, this can be considered retaliation. Making that reasonable accommodation request is considered a protected activity, and transferring them to a different job is considered an adverse action.

While the employer never said why the employee in this example was transferred to a different job, it can be inferred that it was because of the employee’s reasonable accommodation request.

Likewise, when an employee files a sexual harassment complaint with the employer’s human resources department (a protected activity) and the managers reassign her to less favorable projects, stop including her in meetings, and tell coworkers not to speak with her, we can see that before the complaint was filed, the employee was not treated this way. We can infer that this is an adverse action (hostile workplace, failure to promote, and a decision that causes a significant change in benefits) and because we’ve established that connection, we can prove it as retaliation.

Bryant Legal LLC can help you prove retaliation

Although it may seem simple at first glance, proving retaliation is difficult to do.

That’s why it’s important to contact an employment lawyer at Bryant Legal LLC. Our employment attorneys can help you make the connection between the protected action and adverse action and gather evidence that is considered admissible in court. You need every piece of evidence to ensure the outcome of the lawsuit is in your favor, and we will do everything we can to tip the scales in that direction.

Speak to one of our attorneys today for more information and we’ll see what can be done about your case.