Filing a sexual harassment claim against your employer is not an easy step to take. Often times, employees who file sexual harassment claims subsequently leave their employer. On the other hand, what steps can an employee who is being sexually harassed take when they don’t want to leave their job?
It is important for victims of sexual harassment in the workplace to know the rights afforded to them by the law. Both federal and state law provide many protections for employee who are victims of sexual harassment. Further, they also provide protections for employees after they have complained about the harassment they are enduring.
Workplace retaliation occurs when an employer takes a adverse action against an employee for engaging in a protected activity. When comes to complaints of sexual harassment this could include:
- An employer retaliates because an employee files charge with the EOOC
- An employer retaliates because an employee participates in an EEOC investigation or court proceeding
An adverse action by an employer is considered retaliation if that conduct would deter any reasonable employee from complaining about discrimination or harassment in the future.
Establishing a Retaliation Claim
To establish a claim of retaliation an employee must meet three elements. 1) The employee engages in a protected activity; 2) Adverse action is taken against the employee; 3) a causal link between the protected activity and the adverse action.
The EEOC states, “The EEO laws prohibit punishing job applicants or employees for asserting their rights to be free from employment discrimination including harassment. Asserting these EEO rights is called “protected activity,” and it can take many forms. For example, it is unlawful to retaliate against applicants or employees for:
- filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
- communicating with a supervisor or manager about employment discrimination, including harassment
- answering questions during an employer investigation of alleged harassment
- refusing to follow orders that would result in discrimination
- resisting sexual advances, or intervening to protect others
- requesting accommodation of a disability or for a religious practice
- asking managers or co-workers about salary information to uncover potentially discriminatory wages.”
Second, the employee must be able to show that they were subjected to some sort of adverse employment action as result of engaging in that protected activity. The most common forms of adverse actions are termination, harassment or a demotion. In some situations, the adverse action will be taken against a third party who happens to be close to the employee who engaged in the protected activity. For example, if you and your brother work together and your brother is terminated shortly after you provided testimony in harassment claim against your employer, you or your brother may have a claim for retaliation.
Lastly, an employee must able to show that there is a causal link between the protected activity they engaged in and the adverse action taken by their employer. Generally, proof of this causal link comes in the form of circumstantial evidence. This requires the showing of a close temporal proximity between the protected activity and the adverse employment action. An example of circumstantial evidence would be an employee who is able to show that they had positive reviews throughout their career and they were terminated three days after participating in an investigation against their employer.
If you feel as though you’re a victim of retaliation you should consider finding an attorney who is experienced in labor law. If you feel as though you are being retaliated against by your employer, you should contact an attorney who has experience in labor and employment law. The laws governing retaliation are complex. There are strict regulations governing the process for filing a lawsuit. Furthermore, there are strict time restrictions, known as statute of limitations, as to when a lawsuit can be filed. The experienced attorneys at Shegerian Conniff are ready to hold your employer accountable, fight for your legal rights, and seek justice. Click here to contact us today or call us at 310-322-7500 for a free consultation.