According to the Equal Employment Opportunity Commission, retaliation is one of the most common issues raised by employees in the workplace.

How is Retaliation Defined by the Law?

Retaliation occurs when an employer or supervisor takes adverse action against an employee for voicing a complaint or participating in an investigation.

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.”

See: https://www.eeoc.gov/laws/types/retaliation.cfm

It is strictly illegal for an employer to retaliate against any of their employees or applicants for employment because of their complaints to the employers illegal conduct or because they cooperate in an investigation against the employer.

It is not uncommon for cases of harassment to give rise to retaliation cases. Often times employers against whom a claim of discrimination or harassment have been filed take adverse action against any individuals who opposed the unlawful acts or assisted in an investigation of those unlawful acts.

It is important to note, even though these two claims (discrimination and retaliation) arise together, the success of the retaliation claim is not contingent on the success of the discrimination claim. This means that a retaliation claim can still be successful even though the discrimination claim it stemmed from was not.

Establishing a Retaliation Claim

While employees are protected by law from being retaliated against, proving retaliation can be difficult as most cases are based on circumstantial evidence. In order to establish a retaliation claim, an employee must establish three elements:

Protected Conduct

An employee must be able to show that the engaged in some sort of protected activity. This can be done in one of two ways.

The first way in which an employee engages in  protected activity is by opposing some form of unlawful activity by their employer.  When an employee, by their conduct, opposes any action that is unlawful under Title VII, that employee is protected from retaliation under Title VII. The employee is protected if they make a formal complaint about an unlawful activity or refuse to take part in an unlawful activity.

The second way an employee engages in a protected activity is when they participate in some sort of investigation, proceeding or hearing against their employer. If your co-worker files discrimination charge against your employer and you choose to participate in the investigation , you are protected from employer retaliation.

Adverse Action

An employee must also be able to show that they suffered some sort of adverse action at the hands of the employer. The most common forms of adverse actions are termination, harassment or a demotion and a pay cut. Adverse action can also be any action that  would be grounds for a civil or criminal charge.

Adverse actions are not confined to the job and can occur outside the workplace as well. As long as the action has the effect of discouraging a reasonable person from aiding in the investigation.

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.

Causal Link

Lastly, an employee must be able to show that there is causal link between the protected activity they engaged in and the adverse action taken by their employer. The employee must be able to provide sort of evidence, whether direct or circumstantial, that shows  a connection between their action and that of the employers.

An example of direct evidence would be a document in which the employer informs you that they terminating you because you participated in an investigation against. Direct evidence in retaliation claims is very rare.

A more common form of evidence is that of circumstantial evidence. This requires the showing of a close temporal proximity between the activity and the adverse 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. Another example an employee who is able to show that their employer has pattern of termination employees who file complaints against them.

What Next?

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.