When an employee engages in certain protected acts, their employer is legally forbidden from taking action against them in retaliation. These acts include filing complaints about illegal activity such as discrimination and refusing to participate in illegal activities. Unfortunately, employers still may attempt to retaliate against employees. Here is what you should know to prove employer retaliation and/or a whistleblower claim.
Employees who file complaints about discrimination or harassment are legally protected from retaliation by their employer. You should feel free to assert your rights without fear of punishment, but some employers may still retaliate. Here’s what you should know before filing a retaliation lawsuit.
What You Need to Prove a Retaliation Claim
If you are planning to file a retaliation lawsuit, you will need to prove three things:
- You engaged in a protected activity, such as reporting discrimination or harassment.
- Your employer took action against you.
- There is a causal link between your activity and your employer’s action.
What is a Protected Activity?
Under all federal laws prohibiting discrimination, there are two main types of protected activities:
- Opposition: Employees who oppose any act that is illegal under these laws, including discrimination, harassment, and retaliation, are engaged in a protected activity. Among those protected are the employees who make the complaint, as well as those who participate in an internal investigation as witnesses. Opposing illegal acts can include complaints about the acts, as well as refusing to go along with illegal requests.
- Participation: Employees who file a charge of discrimination with the EEOC or another state agency, participate in an agency investigation, or file or take part in a discrimination or harassment lawsuit are protected from retaliation.
What is Considered a Negative Action?
Any “materially adverse” action against an employee may be considered retaliation if the action might be used to deter an employee from filing a complaint or otherwise assisting an investigation. Examples of negative actions include:
- Disciplinary actions
- Termination of employment
- Salary reduction
- Negative evaluations
- Transfer or denial of transfer
- Change in job assignments, job duties, shift
- Change in terms or conditions of employment
How to Prove Causation
Perhaps the most difficult piece of your case to prove, causation is the link between the protected activity and the negative action. You must demonstrate that your employer took negative action against you because you participated in a protected activity. It is not considered retaliation if the action is the result of another cause, such as a cost-cutting measure. It can be difficult to prove retaliation without your employer directly admitting it, but there is still evidence that may support your claim:
- Timing: The adverse action comes directly after the complaint or other protected action.
- Knowledge: The person who took negative action had knowledge of your participation in the protected activity.
- Lack of other explanation: If you can demonstrate there was no other likely cause for the negative action after participation in a protected activity, you may be able to persuade the count that the action was meant to be retaliatory.
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If you suspect that your employer has retaliated against you for speaking up about illegal practices, you deserve justice. At Polaris Law Group, we are dedicated to ensuring that all workers are treated fairly and are not subjected to retaliation for doing the right thing. Our Monterey County retaliation lawyer can help you determine if you have a case, and help you plan your next steps.