Retaliation in the Workplace: How to Prove it

To win a retaliation case, you have to show that your employer subjected you to a negative job action because you complained of harassment or discrimination.

Employees who complain about discrimination or harassment are protected from retaliation. An employer may not punish employees for asserting their rights. However, retaliation still happens; in fact, more that a third of the discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) in the past few years include a retaliation claim.

If you file a lawsuit for retaliation, you’ll have to prove three things:

• You engaged in a protected activity.
• Your employer took action against you.
• There is a causal link between your activity and your employer’s action (in other words, your employer took action against you because of your activity).

All of the federal laws prohibiting discrimination (such as Title VII, Section 1981 of the Civil Rights Act of 1866, the Americans with Disabilities Act, and the Age Discrimination in Employment Act) also prohibit retaliation against employees who engage in “protected activity” under these laws.

There are two types of protected activity:

• Opposition. Employees who oppose any act made illegal by these laws (that is, discrimination, harassment, or retaliation) are engaged in protected activity. The Supreme Court has held that this protects not only employees who complain directly of harassment or discrimination, but also those who participate in an internal investigation of such a complaint as witnesses. Generally, any time an employee communicates to the employer a belief that the employer has engaged in discrimination or harassment, that employee is protected from retaliation. This includes situations in which an employee refuses to go along with a discriminatory request (for example, an executive’s mandate that the company not hire anyone over the age of 50).
• Participation. Employees who file a charge of discrimination with the EEOC or a similar state agency, participate or assist in an agency investigation, or file or take part (for example, as a witness) in a discrimination or harassment lawsuit are also protected from retaliation. Courts have ruled differently as to whether this clause protects employees who participate in a company’s own internal investigation; however, those employees are protected under the opposition clause, above.

Learn more about Retaliation in the Workplace.

Any “materially adverse” action against an employee may constitute retaliation under Title VII and other civil rights statutes, if the action might deter a reasonable employee from making a complaint or otherwise engaging in protected activity. Because enforcement of the laws prohibiting discrimination depends on employees being willing to come forward with complaints, these statutes have been interpreted generously, to provide broad protection from retaliation.

Examples of materially adverse actions include demotion, discipline, firing, salary reduction, negative evaluations, transfer, change in job assignments, change in job duties, change in shift, or change in other terms and conditions of employment.

It’s not enough for an employee to show that he or she engaged in protected activity and was subjected to a negative job action: The two events must be connected. For example, an employee who complains to the HR department of harassment by a customer, then is laid off with the rest of her team in a planned cost-cutting measure would have a tough time proving retaliation. If the adverse action is completely unrelated to the employee’s complaint, there’s no retaliation.

It can be tough to prove causation directly, unless the employer admits it. For example, if a manager says, “If you file a complaint with HR, you can forget about that promotion,” then an employee can show a direct link between the two events. Usually, however, employees have to present indirect evidence of retaliation, such as:

• Timing. This is the most common way to prove retaliation: If the adverse action comes right after the employee complains, retaliation looks more likely.
• Knowledge. An employee claiming retaliation has to be able to show that the person who took the adverse action knew about the complaint or other protected activity. Otherwise, it will be impossible to show that person acted “because of” the complaint.
• Lack of other explanations. An employee who can show that the employer had no other reason for taking the adverse action, or that the employer’s stated reason for taking action doesn’t make sense, will have a stronger argument. For example, if an employee suffers a pay cut shortly after filing a discrimination complaint, and the employer claims that the entire department’s pay has been cut, the employer’s explanation will look pretty fishy if other employees in the department haven’t had their pay reduced. Similarly, if an employee has excellent performance reviews and no disciplinary actions, then suddenly gets a negative review shortly after complaining, that might look suspect.

Learn more about Asserting Your Rights at Work.

If you are facing workplace retaliation, you should consider a consultation with an employment lawyer. Retaliation can make an employee’s work life miserable; it can also lead to job loss. An experienced attorney can help you figure out the best way to protect yourself and negotiate a resolution with your employer. An attorney can also make sure you meet all of the applicable deadlines to assert your rights (by, for example, filing a charge with the EEOC and a lawsuit).