Retaliation is the most common type of complaint filed with the Equal Employment Opportunity Commission (EEOC) year after year. In 2017, there were over 40,000 retaliation claims filed with the EEOC. This means nearly half of all complaints received by this federal agency involved allegations of retaliation. Many of these complaints are resolved in mediation, while others end up before a judge in court. Regardless of where the case ends up, it’s important to have strong evidence that your employer retaliated against you.

What Must Be Proven in Retaliation Cases?

There are three elements of illegal retaliation that plaintiffs must be able to prove in order to recover compensation from their employer. First, you must show that you engaged in a protected activity. Examples of protected activities include filing a claim with the EEOC, reporting discriminatory behavior internally, or acting as a witness in someone else’s discrimination case. Basically, if you are asserting the rights protected by the EEOC, you are engaging in a protected activity.

You must also be able to prove that your employer took a “materially adverse action” against you. This can include any type of behavior that could deter someone from participating in a protected activity in the future. Employers often retaliate against someone by firing them, demoting them, verbally harassing them, or threatening them. Retaliation can occur outside of the workplace, too. The materially adverse action does not need to be related to the victim’s employment in order to be considered retaliation. As long as the action is serious enough to deter someone from engaging in a protected activity, it is retaliatory in nature.

Finally, it must be proven that the employer was motivated to take an adverse action because of your decision to engage in a protected activity. If the adverse action was taken for some other reason, the employer cannot be held liable for violating your rights.

The Legal Standard For Proving Retaliation

The burden of proof falls on the plaintiff in retaliation cases, which means it is not the employer’s responsibility to disprove that retaliation occurred, but rather the employee’s responsibility to prove that it did.

In criminal court, the legal standard is “beyond a reasonable doubt.” This means the prosecution must present evidence that convinces the jury of the defendant’s guilt “beyond a reasonable doubt.” However, the legal standard for proving retaliation is different. In these cases, the legal standard is known as the “but for” causation. This means the plaintiff must show that the employer would not have taken the materially adverse action if they did not have a retaliatory motive.

Types of Evidence Used to Prove Retaliation

If you have been retaliated against in the workplace, it’s important to work closely with an attorney to gather the evidence that is needed to prove your employer violated your rights. Sometimes, the employer’s own words can be used to prove their retaliatory motive. A supervisor or HR representative may have told the victim or another employee about their intention to retaliate against anyone who engaged in a protected activity. In this case, testimony from people who witnessed this exchange could be used to hold the employer accountable.

But unfortunately, most employers know not to openly talk about violating the rights of their employees. Luckily, there are other ways to prove retaliation besides relying on the employer’s own words. Sometimes, the timing of the adverse action is enough to prove the employer’s motive. If someone is fired immediately after reporting sexual harassment, this indicates the employer’s decision to terminate the employee was motivated by the employee’s decision to report harassment.

Evidence found during a review of the employer’s records can also be used in retaliation cases. For example, let’s say you are written up after showing up five minutes late to work one morning. You believe that you are being targeted because you were a witness in another employee’s discrimination case with the EEOC. How can this be proven? A review of the company’s records may help. Reviewing timecards may reveal that other employees regularly show up late for work, but they are never punished in the way that you were. If you are being treated differently than other employees, this indicates the employer is retaliating against you.

Defense Strategies Used by Employers

Even though the employer is not responsible for disproving the claim, some employers still attempt to defend themselves. These employers will provide the court with a non-retaliatory reason for their actions. For instance, if you believe your termination was retaliation, the employer may argue that you were fired because of a poor job performance. Employers can also argue that their behavior was motivated by the need to downsize or the employee’s own misconduct.

If one of these arguments is presented, it’s important to present evidence that pokes holes in it. Presenting copies of annual performance reviews, for example, can show the court that the employee was never given a poor review.

Employers may also claim that they weren’t aware of the employee’s involvement in a protected activity, so there’s no way they could have been acting with a retaliatory motive. Attorneys must be ready to disprove this claim by presenting evidence that shows the employer was well aware of the employee’s decision to engage in a protected activity. For instance, an attorney can subpoena the employer in order to get their hands on emails that clearly show the employer knew of the employee’s protected activity.

If you have been illegally retaliated against by your employer, seek legal representation from an experienced employment law attorney as soon as possible. The team of employment law attorneys at Shegerian & Associates will gather the evidence needed to prove your employer engaged in retaliatory behavior. Contact us today by calling 1-800-GOT-FIRED.