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How Can I Prove Employer Retaliation?

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By Ephrat Livni, Esq. on September 22, 2015 10:29 AM

Employers shouldn't retaliate against their workers. It's bad for business. In many contexts, it's also illegal. For example, employers cannot retaliate when workers complain about protected activity.

Proving that you were penalized for making a complaint (or for whistleblowing) can be difficult because you must show a connection between your actions and your boss's reaction. You must have actual evidence that the employer retaliated as a consequence of you speaking out.

Three Essential Elements to Prove Retaliation

Here are the three elements that must be shown to prove retaliation:

  • 1. Protected Activity. There are three essential elements to a retaliation claim, the first is protected activity. Federal laws prohibiting discrimination provide that retaliation against employees who engage in protected activity -- meaning internal or external complaint regarding company wrongdoing -- is illegal.

  • 2. Materially Adverse Action. To prove retaliation you must also show your employer took adverse action, which can be anything from a demotion, losing a promotion, a pay cut, or termination. Action that is considered "materially adverse" to a "reasonable employee" is action that "might have dissuaded a reasonable worker from making or supporting" a complaint.

  • 3. Causal Connection. A materially adverse action that follows protected activity may show retaliation ... but not necessarily. Specifics will determine whether you can show that your employer punished you for your complaints, that the boss's action was a consequence of what you did and not just a convenient coincidence.

Show Consequence, Not Coincidence

Demonstrating the connection between an employee's protected activity and punishment is often the most difficult part of a retaliation claim. The connection may be established by both direct and circumstantial evidence. Direct evidence includes written or verbal statements that an employee was fired for engaging in a protected activity. Circumstantial evidence infers punishment based on timing and other circumstances.

If your whole team is terminated and you were the only person who complained about discrimination, it will be hard to prove that you were dismissed as punishment. Similarly, if you find yourself materially adversely acted upon but the explicit complaints about you are unrelated to your protected activity, it may not be retaliation even if it looks and feels like punishment.

Putting It All Together

Workers who speak out are protected by US laws, both state and federal. But not all activity is protected and not all adverse action is considered punishment for complaint. Speak to an attorney who can help you sort through your case.

To show retaliation you will need to apply all three factors listed above and show how they work together. If you can show that you were engaged in protected activity, your employer took adverse action, and that the boss did this because you spoke up, you will prove retaliation and recover damages.

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