There are two types of retaliation all employees are protected from by law: retaliation for opposing discrimination, called discriminatory retaliation, and discrimination for reporting various violations of laws, rules, and regulations by your employer, called whistleblower retaliation. This page discusses discriminatory retaliation. If you are interested in whistleblower retaliation, please click here.
Retaliation is a situation where you opposed illegal discrimination by your employer, whether it was directed at you or not, and your employer took action against you as a result of your opposition. In order to have a valid claim of discriminatory retaliation, you will need to meet three basic requirements, discussed below. If you believe the below situation could apply to you, then contact our retaliation lawyers today for a free evaluation and consultation.
Did You Oppose It?
“The anti-retaliation provisions make it unlawful to discriminate against an individual because s/he has opposed any practice made unlawful under the employment discrimination statutes. This protection applies if an individual explicitly or implicitly communicates to his or her employer or other covered entity a belief that its activity constitutes a form of employment discrimination that is covered by any of the statutes enforced by the EEOC.” EEOC.gov.
The first requirement for bringing a retaliation claim is that you opposed a discriminatory practice, something known as a "protected disclosure." The discrimination you oppose doesn't need to have happened to you specifically. No magic words are required to protect yourself under the law and you do not necessarily even need to express your opposition to management directly. In almost every circumstance, no matter how you do it, complaining of discrimination at your workplace protects you from any retaliation that comes thereafter. The law is written to cover a broad range of scenarios here; for example, even serving as a witness in another person’s EEOC complaint or complaining about your manager treating a race of customers differently protects you from your employer retaliating against you because of it. Our retaliation lawyers can walk through any scenario to advise you on whether yours fits into the applicable legal framework.
What Happened to You?
“The most obvious types of retaliation are denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge. Other types of adverse actions include threats, reprimands, negative evaluations, harassment, or other adverse treatment.” EEOC.gov.
Even if your employer’s actions do not fall into any of the categories listed by the EEOC, the term “other adverse treatment” covers a wide variety of actions. The question of what gives rise to an adverse action is perhaps most easily answered by stating that, if the adverse action would be considered either a “prohibited personnel practice” or “harassment," then it probably falls under retaliation protections, as well.
Making the Connection
“In order to establish unlawful retaliation, there must be proof that the respondent took an adverse action because the charging party engaged in protected activity. Proof of this retaliatory motive can be through direct or circumstantial evidence.” EEOC.gov.
The final piece of the puzzle in a successful retaliation claim is to show that your management knew you participated in a protected activity and, because of that activity, took an adverse action against you; this is known as the "knowledge/timing test." You must therefore show that management had knowledge of your disclosure and your disclosure happened close in time with the retaliatory acts from which you suffered. Direct evidence, such as e-mails linking the two events, is ideal. Of course, your employer leaving you a string of e-mails saying they are retaliating against you is rare, so federal law also allows for the use of circumstantial evidence to prove that, more likely than not, the adverse action occurred because of the protected activity. Since knowledge is usually easy to establish because you likely reported your protected disclosure directly to management or HR, the timing test is generally key - you want to show that what happened to you is within a few months of your protected disclosure or that you were given a series of escalating punishments that management concocted as an excuse for harsher discipline.
The law in this area is written to be very broad. As a result, nearly 40 years of case law has created a tangled web of scenarios that will give rise to a claim of retaliation and scenarios that will not. An experienced retaliation lawyer in the field will be an almost-necessity to ensure that your claim is worth your time and money to pursue. If you think your situation may meet these three requirements, contact us today for a free case evaluation.