The Equal Employment Opportunity Commission (EEOC) reported that there were over 42,000 retaliation charges filed in 2016, making retaliation the most common type of alleged discrimination. Even though the EEOC released guidelines to employers last year that answered frequently asked questions about what constitutes retaliation, this type of discrimination is still prevalent in the workplace. In fact, the number of retaliation charges filed with the EEOC has been increasing year after year.
The burden of proof is on the plaintiff in retaliation cases, which means the plaintiff is responsible for proving that they are a victim of retaliation. This can be done by proving these three elements of a retaliation claim:
Engagement in Protected Activity
By definition, retaliation occurs when an employer takes adverse action against an employee for engaging in a protected activity. Thus, the first step in proving a retaliation claim is establishing that you did take part in a protected activity.
There are two types of protected activities. The first involves participating in any type of EEOC discrimination and harassment complaint. This means anyone who files a complaint, serves as a witness in a complaint, or participates in any other way in an EEOC investigation cannot be retaliated against. Employees who participate in internal investigations are also protected, even if a claim is never filed with the EEOC. For example, someone who informs Human Resources that a colleague is being sexually harassed by an executive is protected against retaliation, even if the claim never goes any further than this.
The second type of protected activity involves opposing any unlawful conduct in the workplace. Basically, this means that an employer cannot retaliate against someone who is opposed to an employer’s decision to violate equal employment laws. For instance, let’s say a senior executive tells you to fire someone because of their race. You know that firing someone because of that person’s race is a form of racial discrimination, so you tell your superior that you will not comply with their request. This is an example of opposing an employer’s attempt to violate equal employment laws, so you cannot be retaliated against because of your stance on this issue.
Other examples of opposing violations of equal employment laws include saying “no” to unwelcome sexual advance or threatening to report discriminatory behavior. However, it is not considered a protected activity if it involves threats of violence or other unreasonable conduct. Threatening to physically hurt someone because they are violating an equal employment law is not acceptable, so the EEOC will not protect you against retaliation in this case.
Adverse Action Against the Plaintiff
After you have established that you engaged in a protected activity, you will need to prove that your employer took adverse action against you. What types of activities are considered “adverse actions”? As long as an action is severe enough to deter other people from engaging in protected activities in the future, it is considered an adverse action.
Some of the most obvious examples of adverse actions include demotion, termination, suspension, or denying an employee job benefits. However, it’s important to note that there are many other forms of retaliation. Some types of retaliation don’t even take place in the workplace or affect the employee’s work. Even if it takes place outside of the workplace, it is still retaliation as long as it is being done in response to the victim’s engagement in a protected activity.
Some less obvious examples of adverse action include verbal or physical abuse, threatening to deport a worker who is an immigrant, reassigning an employee to another position, taking away managerial duties, slandering the employee in the press, filing a civil lawsuit against the employee, or giving the employee a poor performance review. Taking adverse action against an employee’s family member or close friend can also be considered retaliation.
Intent to Retaliate
Finally, you must be able to prove that the employer took the adverse action against you because of your decision to engage in the protected activity. To put it simply, you must show that the employer intended to retaliate against you.
Sometimes, an employer will inadvertently admit to retaliating against an employee when giving a written statement to the EEOC during the investigation. The employer may admit they were angry with the employee for engaging in the protected activity and welcomed the opportunity to take revenge.
But, there are other ways to prove the employer’s intent. It’s possible that the EEOC will think the timing is enough evidence to prove the employer was retaliating against you. For example, if your employer fires you the same day it is revealed that you filed a sexual harassment claim, it’s very likely that terminating your employment was retaliation. Witnesses such as co-workers or clients could also support your claim and provide evidence that you were being retaliated against.
Evidence can also be found by looking at employee records. For instance, let’s say your employer took disciplinary action against you because you clocked in two minutes late to work one morning. The EEOC may review other employees’ records to determine if anyone else has been disciplined for such a minor violation of the company’s policy. If the EEOC finds that many other employees have done the same thing, but none of them have been disciplined, this could prove that you are being targeted for engaging in a protected activity.
An employer may try to undermine your efforts to prove retaliation, but an employment law attorney won’t let that happen. If you have been retaliated against, seek legal representation at once. The employment law attorneys at Shegerian & Associates will explain your legal options and help you seek justice against your employer. Contact us today by calling 1-800-GOT-FIRED.