Workplace Retaliation

State and federal laws that prohibit discrimination also prohibit employers from “retaliating” against workers because they have made complaint under those laws. In a retaliation case, a plaintiff alleges their employer retaliated against them because they took steps to enforce a lawsuit right.

Essential Elements

To win a retaliation claim case against your employer you must prove each of the following:

  1. Engagment in protected activity.
  2. Employer took an adverse employment action.
  3. Causal connection between protected activity and adverse employment action.
  4. Damages

A complaint is considered “protected activity” if it was based on a good-faith, reasonable belief that an employer discrimination against a workers because of the worker’s race, religion, sex, national origin, age, or disability. We call these classifications, “protected traits.”

“Good faith” simply means you honestly believe your employer discrimination against you because of your protected trait(s). A “reasonable belief” is if a reasonably, prudent person would, under the circumstances, believe that your employer discriminated against you because of a protected trait. It’s important to know that you do not have to actually prove that your employer discriminated against you, all you must prove is that you had a good-faith, reasonable belief.

An “adverse employment action” means a type of action that would have made a reasonable worker reluctant to make a complaint or charge of discrimination. If a reasonable worker would be less inclined to make a complaint or oppose a discriminatory practice because he or she knows they would be fired, then the action is an adverse employment action. Typically, the most common adverse employment action is termination.

Causal Connection

If you made a complaint to Human Resources regarding workplace discrimination or harassment and you were then fired, demoted, or suffered some other adverse employment action, you must now prove that your complaint and the adverse employment action were “causally related.”

In other words, was the reason you were fired, demoted, transferred because you made the complaint or some other legitimated, non-retaliatory reason? This is the essential question that must be answered in all workplace retaliation claims.

Temporal Proximity

In winning a retaliation case, close temporal proximity is important. What we mean by this is the closer in time the protected activity (i.e. complaint) is to the adverse employment action (i.e. termination), the better your chances of proving a casual connection. For example, if you made a race discrimination complaint on Monday and by Wednesday you were cleaning out your desk, it can be said there is a causal connection because of the close temporal proximity of the complaint (Monday) and the adverse employment action/termination (Wednesday).

Now, if you were fired six (6) months after making a complaint and you cannot rebut your employer’s legitimate, non-discriminatory motivation for your termination head-on, you likely will lose on the causal connection element.

7.8Micah J Longo
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