Proving Workplace Retaliation Claims Against an Employer

One of the most complicated areas of employment law is workplace retaliation.

The burden of proof falls on the employee and there are certain elements that need to be proven to establish the offense.

There are also different federal and state laws that govern the issue, and an employment law attorney hired for the case should be knowledgeable in them.

Workplace Retaliation in general can be defined as a conduct of an employer that aims to “get back” at an employee for performing an act that is protected by law.

In California, the law that covers retaliation in the workplace is the Fair Employment and Housing Act or FEHA.

Aside from FEHA, workplace retaliation is also prohibited under the following federal laws:

• Title VII of the Civil Rights Act of 1964
• Americans with Disabilities Act (ADA)
• Age Discrimination in Employment Act (ADEA)
• National Labor Relations Act (NLRA)

To win a retaliation claim, the employee should be able to establish the following elements:

Employee Engaged in Protected Protocol

If an employee asserts the rights that are given to him or her by the law, then those actions are seen by the courts as protected.

For example, Title VII of the Civil Rights Act of 1964 prohibits retaliation to employees who filed a complaint or lawsuit, or participated in a discrimination or harassment investigation against an employer.

If an employee turns out to be wrong in his assertions of discrimination, the law still protects him from retaliation from the employer.

Employer Took Adverse Action against Employee

The second element of a workplace retaliation claim is that the employee must show that he or she suffered some form of adverse action from the employer as a form of retaliation.

The US Supreme Court defined how much an employee must suffer to have a tangible retaliation claim.

According to the US Supreme Court, adverse actions are actions or conduct that would have been materially adverse to a reasonable employee who is put in the same situation.

The workplace retaliation attorney should be able to prove that the adverse action would have dissuaded a reasonable employee from practicing his rights given by law like participating in investigation, filing a complaint and charging the employer with a lawsuit for discrimination.

Examples of adverse actions are:

• Termination
• Demotion
• Non-payment of wages
• Discrimination
• Harassment

Retaliatory Intent

The employee must then prove that the adverse actions by the employer were done because the employee engaged in protected conduct.

Since no employer will admit to retaliation, the employee must find a way to prove the connection.

An employee can prove it through the following examples:

• Lack or insufficient investigation on the employee’s complaint
• Employee experiences unequal treatment
• The adverse action occurred in a significantly close time to the protected action
• Emerging pattern of adverse actions and hostility towards employee
• Bogus explanation to justify adverse actions

To know more about workplace retaliation, consult an employment law attorney for more details.