14 Apr How to Prove Retaliation in the Workplace?
Despite strong employment laws in California, workplace discrimination and harassment can still happen and a potential risk for every employee in all industries. In fact, a survey revealed that 70% of employees in the US experienced some form of discrimination and abusive behavior at work.
Moreover, almost 75% of workers who reported the incident, received some kind of retaliation from their harasser/aggressor. So, it shouldn’t come as a surprise that many victims of negative behavior in the workplace refuse to speak up for fear of retaliation.
Fortunately, retaliation to an employee who exercises their rights is prohibited and punishable by law. Below is an in-depth discussion on what you can do when this happens一from filing a claim to learning how to prove retaliation in the workplace.
What is Retaliation in the Workplace?
Workplace retaliation occurs when a co-worker or employer in the company takes negative action after an employee engages in a legally protected activity such as filing a complaint for harassment. It is important to understand that harassment and retaliation are not always coming from a supervisor. According to the Equal Employment Opportunity Commission (EEOC), formally filing a complaint against workplace discrimination or harassment is considered a “protected activity.” Some examples of a legally protected activity in the workplace include:
- Filing a legal complaint of discrimination or inappropriate behavior against an employer based on the protected categories.
- Formally complaining to the company’s HR or management about discriminatory and harassing acts in the workplace.
- Participating in an ongoing EEOC lawsuit or EEOC investigation regarding employment discrimination. This also includes acting as a whistleblower for a government agency.
- Creating employee unions or organizing unions.
- Demanding hard-earned but unpaid salary or overtime pay.
Since federal and state laws protect these acts, any untoward actions made by the employer or company leader to the complainant is deemed illegal. Some of the specific rules that prohibit employer retaliation include the following:
- Equal Employment Opportunity Commission (EEOC)
- False Claims Act
- Americans with Disabilities Act (ADA)
- Equal Pay Act
- Sarbanes-Oxley Act, and
- California Fair Employment and Housing Act (FEHA)
These laws protect an employee even if the reported harassment or retaliation claim turns out to be unfounded, so long as it’s made in good faith.
How Can an Employer Retaliate Against an Employee?
Unlawful workplace retaliation refers to any negative action taken by the employer or someone employed by the organization that has an adverse effect on one’s employment. Inappropriate actions severe enough to prevent a reasonable employee from exerting their legal rights also constitute retaliation. Some examples of such untoward activities include the following:
This refers to an employee’s sudden departure from a job or position after they took legal action against workplace discrimination or harassment. Retaliation through termination may also manifest as an employer building a case against the employee for their eventual termination, for example, giving you unreasonably poor performance reviews or warnings.
Demotion or Withholding Promotion
This happens when an employer retaliates by demoting you to a lower-ranking position. It can also be considered a demotion when the employer withheld your rightfully deserved promotion, salary raise or when they retracted certain privileges that should have come with your current position.
Reduction in Salary, Benefits, or Work Hours
Another common retaliatory adverse action is when an employer suddenly makes cutbacks to your salary, work benefits, or work hours. Sometimes, an employer can retaliate by giving you undesirable hours, knowing that it will make your work and personal life unbearable.
It is considered retaliation when the employer intentionally excludes you from important staff meetings and work training. Another example would be purposely excluding you or taking you off a project you are currently working on.
An employer transfers you to another department or workplace. It can also be seen as an employer reassigning you to work on less desirable duties and projects that cause undue hardships in your work life.
Physical or Verbal Threats
Some examples of physical or verbal harassment include discriminating remarks or physical threats that endanger your safety. It can also include making the work environment feel uncomfortable and unsafe for the employee by making work-related threats, warnings, and reprimands.
It’s important to note that not all forms of retaliation necessarily threaten your employment. Some forms of retaliatory acts can be subtle but can significantly affect employees’ safety and work environment.
For example, the aggrieved employer starts micromanaging you more than other employees without reasonable cause.
How Do You Prove Retaliation in the Workplace?
If you think that an employee or company leader is retaliating against you, the first course of action should be to address it to the management. Voice out your concerns and see if there’s a reasonable explanation for the inappropriate acts (e.g., demoting you due to tardiness or reassigning you to another department because your expertise is needed).
Once addressed, the employer should immediately stop and undo their retaliatory actions if possible. At the very least, they should admit their wrongdoing and create a solution to your complaint. .
If the aggressor is not willing to do such things, you might need to take your concerns to court. But first, you need to gather enough evidence to prove that your employer is retaliating against you. One way to do this is to gather as much concrete evidence as possible to prove that your employer retaliated against you.
Evidence that Matters in a Retaliation Suit
Showing a link between the complaint and retaliatory behavior requires substantial proof. Such evidence can either be direct or circumstantial, such as:
- Emails, call logs, personal notes, text messages, memos, voice mails, and letters. For example, if the employer terminated you for “poor performance,” you can dig up prior emails (before the complaint) wherein the employer states that you have an exemplary work performance.
- Contemporaneous journal entries detailing the retaliatory behaviors and showing the correlation. You can input the date, time, inappropriate actions, and possible witnesses.
- The timing of the retaliatory action or temporal proximity can also serve as evidence. For example, a 10-year employee who has a history of receiving good reviews suddenly starts receiving bad ones, gets demoted, or terminated days AFTER their formal complaint.
However, this can be tricky since there’s no definite rule in determining what’s considered a “close proximity” timing between the protected activity and the retaliation. But, there are cases wherein the court considered three to four months as close and therefore deemed an adverse employment action.
- Witness testimonies can also serve as strong proof against workplace retaliation. For example, another employee who witnessed the retaliatory harassment can testify in court in favor of your retaliation claim.
Your lawyer can also present circumstantial evidence to prove your employer’s negative employment actions against you. Besides the timing proximity, they can also use “the bring forth the fact”.
One vital thing you should keep in mind is to avoid making audio or video recordings as evidence for your retaliation case. According to California law, it is prohibited to record someone (audio or video) unless there’s consent from all the parties involved.
The Keys to Win Employer Retaliation Cases
In proving retaliation, you should be able to present pieces of evidence that these three things occurred:
- Protected Activity – you engaged in or are engaging in a protected activity for unlawful harassment and discrimination in the workplace.
- Negative Action – in response, your employer punished or took a tangible negative action against you.
- Causation – there’s a strong connection between the retaliatory act and the protected activity. As a result, the victim suffered damages due to the negative action.
The third proof is the most important one, which the litigation primarily focuses on. So, it’s vital to gather strong and admissible evidence to prove that the inappropriate act is due to your engagement in the protected activity.
Proving the causation on your own can be more than challenging since it should connect to a specific employment law being invoked. So you must seek a trusted employment attorney to get proper legal representation.
If you are a victim of workplace discrimination, harassment, or retaliation, then you’re on the right page.
Fernald Law Group has been protecting employees and upholding their rights for many years now. We strive hard to help get you the justice and proper compensation you rightfully deserve.