What amounts to retaliation?
Retaliation is the adverse action taken by an employer or supervisor against an employee for filing a complaint or collaborating with a government agent in an investigation on discriminatory harassment at the work place.
It is an illegal employment practice for any employer to retaliate against any of his employees or applicants for employment because of their opposition to the employer’s unlawful conduct or cooperation in an investigation against the employer.
More often than not harassment cases give rise to retaliation cases as most employers against whom discriminatory harassment claims have been filed take adverse action against the individual who either opposed the unlawful act or assisted in an investigation.
Even though these two claims usually arise together, the success of a retaliation claim is not dependent on that of the discriminatory claim. This means that a retaliation claim may be successful even though the previous or concurrent discriminatory claim has failed.
Proving retaliation can be quite problematic as most cases are usually based on circumstantial evidence. An employment law attorney will be of great assistance in helping you compile evidence to build your case.
In order to establish a retaliation claim, you have to establish three elements:
You should be able to show that you engaged in a protected activity.
Protected conduct can be categorized into two:
Opposition to unlawful activity
Where by your conduct you opposed any action that constitutes an unlawful employment practice under Title VII of the Civil Rights Act you are protected from retaliation by your employer as long as your action is reasonable and you acted in good faith.
Under opposition, protection is granted where you make a formal complaint to your employer on sexual harassment or you disobey your employer’s order where complying with the order would constitute a discriminatory action.
You would also be protected where by your conduct you oppose sexual harassment by writing critical letters to customers and protesting against discrimination.
Under the participation clause, you are protected if you are actively involved in any employment discrimination investigation, proceeding or hearing against your employer. If you file discriminatory harassment charges with government agency as well as cooperate in proceedings initiated by your fellow employees you are protected from employer reprisal under the participation clause.
The US Supreme Court in The Crawford case, expanded the scope of opposition to include an employee’s response to investigation questions about supposed unlawful discrimination. Ms. Crawford was questioned as a potential witness to a sexual harassment investigation filed by a coworker. Ms. Crawford admitted that she had also been subjected to sexual harassment actions by her supervisor who was the subject of the investigation. Ms. Crawford’s employer, instead of taking action against her alleged harasser terminated Ms. Crawford employment on grounds of embezzlement, allegations which she denied and filed suit against her employer for retaliation.
You should be able to show that you have suffered adverse action by the employer subsequent to or contemporaneous with the protected activity. Such adverse action should be one that is likely to dissuade a reasonable employee from filing a claim or further supporting a discrimination charge.
Normally reprisal takes the form of termination, harassment or demotion accompanied by a pay cut. Adverse action also includes any conduct that would be grounds for a civil or criminal charge such as threats or assault.
The adverse actions are not confined to ones terms and conditions of employment. Adverse action can occur outside an individual’s workplace as long as it has the effect of discouraging a reasonable person from aiding in the investigation or making the claims for example giving a false or negative job reference or refusing to give one to a former employee after they have left the place of employment.
Where action is taken against a third party who happens to be closely related or associated with you such as your spouse or relative then it can amount it adverse action as it is a source of dissuasion. In such a situation you or your relative/ spouse can bring a retaliation claim.
You should also be able to show that there exists a causal connection between your activity and that of your employer. Proof can take the form of direct or circumstantial evidence. Under direct evidence you can adduce a written or oral statement made by the employer or the employer’s official to the effect that the employer would retaliate against you.
Circumstantial evidence is the more common way. One of the ways of establishing a causal link through circumstantial evidence is by proving the existence of a ‘very close’ temporal proximity between your protected conduct and the employer’s adverse action. The other way would be to show that your employer was aware of your protected activity. Another way would be to show that other employees who engaged in a similar protected activity were also fired.
Once you have proved existence of a prima facie case by showing that the above elements existed, a rebuttable presumption of ill retaliatory motive for your employer’s adverse action is created. This presumption has the effect of shifting the burden to your employer to show that the supposed adverse action was based on a legitimate ground and was therefore nondiscriminatory. If your employer establishes legitimate ground, the burden shifts back to you to prove that your employers action was more likely than not a retaliation.
When you consult an employment law attorney and explain the facts of your case to them, they will assist you in determine whether the elements of retaliation exist and will help you build and file a retaliation case and defend it for you in court.
What remedies are available to me if I file a retaliatory claim?
- Temporary or preliminary relief
Where there is a high probability that the claim will be successful and that there is a likelihood that you will suffer irreparable damage because of retaliation, a temporary injunctive relief can be sought.
- Compensatory or punitive damages
Both legal and equitable reliefs are available in the form of compensatory and punitive damages for retaliation claims.
If you feel that your employer is retaliating against you, you should speak with an employment law attorney to help you file a claim so as to stop the conduct and recover damages. (https://www.eeoc.gov/policy/docs/retal.html )