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How to Prove Retaliation in the Workplace

written by Daniel Bryant

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What is Retaliation?

Workplace retaliation can negatively impact the trajectory of your career. It can cause the loss of your job, demotion or being passed over for promotion, job reassignment, cut hours, and/or lost wages. 

Retaliation occurs when an employer takes an adverse action against you because you engaged in a protected activity. 

What is a Protected Activity?

“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
  • Assisting in an Equal Employment Opportunity Commission (EEOC) or agency investigation (i.e., whistleblowing)
  • Filing a complaint of discrimination with the EEOC
  • Participating in any manner in an internal investigation, proceeding, or hearing involving allegations of workplace 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

How Do You Prove Retaliation?

Proving unlawful retaliation can make sure you receive the compensation you deserve — but it’s not easy.

Establishing retaliation requires you to prove 3 components, and failure to prove just one of these items can end in your case being tossed out.

An experienced employment attorney can help determine if you have met these components, gather the evidence you need to support your claim and build a retaliation case against your employer. 

Contact Bryant Legal LLC for a free case consultation.

The 3 Components of a Workplace Retaliation Claim

In order to prove a retaliation claim, you have to show the following 3 components are  true:

1. Participation in a Protected Activity or Refusal 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 obey a discriminatory order. It can also be applied to employees:

  • Making a complaint of discrimination about alleged discrimination for themselves or others
  • Picketing to oppose harassment or discrimination
  • Threatening to file a discrimination charge

Retaliation to participation focuses on retaliation against employees engaging in protected activities, such as:

  • Filing a charge of discrimination
  • Opposing unlawful conduct (or testifying about said unlawful conduct)
  • 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 the Employee

You need to prove that your employer took adverse action against you.

Common forms of retaliation against an employee may include:

  • Discrimination or harassment
  • Demotion
  • Suspension
  • Termination or firing
  • Failure to promote
  • Reassignment to a position with vastly different responsibilities or requirements
  • Verbally abusing employees who participated in a protected activity, thus creating a hostile work environment
  • An adverse employment decision that causes a significant change in benefits, such as a reduction in a full-time employee’s work hours that would result in the loss of health care benefits

These are only a handful of retaliatory actions. If your employer took a negative action against you that is not listed above, it is possible you still may have a case.

The retaliation attorneys at Bryant Legal LLC can help determine if you can make a successful claim of retaliation — contact us today.

3. Inference of Retaliation: Connecting the Employer’s Adverse Action and the Employee’s 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 they demoted, fired, or suspended you because you engaged in a protected activity. 

Even if they have, it’s your word against your employer’s word, which probably wasn’t a recorded conversation.

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 a reasonable accommodation request is considered a protected activity and transferring the employee to a different job is considered an adverse action.

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

Likewise, if an employee files a sexual harassment complaint with the employer’s human resources department (a protected activity), the employer may:

  • Reassign them to less favorable projects
  • Stop including them in meetings
  • Tell coworkers not to speak with them

Managers and supervisors did not treat the employee differently prior to their report of harassment in the workplace. We can infer that these are adverse actions and because we’ve established that connection, we can prove it as retaliation.

Bryant Legal LLC Can Help You Prove Retaliation in the Workplace — Contact Us Today

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

That’s why it’s important to contact an employment lawyer at Bryant Legal LLC. Our employment law attorneys can help you make the connection between the protected action and adverse action and gather evidence of retaliation that is considered admissible in court.

You need every piece of evidence to ensure the outcome of your retaliation case is in your favor, and we will do everything we can to tip the scales in that direction. If you believe you have experienced retaliation and are protected against retaliation, contact the retaliation attorneys at Bryant Legal LLC, and we’ll see what can be done about your case.

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