How Is Retaliation Proven?

Retaliation in the workplace occurs when an employer takes adverse action against an employee because they participated in a protected activity. An example of a protected activity is whistleblowing an illegal action at work. Retaliation can negatively impact a person’s life and career and can be difficult to prove without a skilled employment lawyer.

According to the U.S. Equal Employment Opportunity Commission (EEOC), retaliation is one of the most commonly reported issue in the workplace, particularly amongst employees in the federal sector. The EEOC also found that most retaliation cases occur because an original discrimination claim did not establish an illegal activity. However, the employee will then experience retaliation because of those allegations.

Retaliation is when an employer or manager fires, demotes, harasses, or performs any adverse action against an employee because they participated in a discrimination proceeding, filed a complaint of discrimination, or opposed discrimination against any of these protected classes:

Proving retaliation is a difficult task, but it is not impossible. One of the most important ways to prove retaliation is documenting everything that occurs in the workplace, especially a recently reported violation. If there were any changes in your work environment, you must document it into a journal and through your HR department after initially filing your complaint. Keeping track of any raises or promotions, as well as having a copy of your employee file, will also be helpful.  Analyzing your employment history may be an indicator of retaliation, as many times you are able to trace adverse actions taken against you after you filed a complaint. 

In many cases, retaliation is not immediately apparent and can happen subtly. Documenting the timing of certain events can help prove a case of retaliation.

The Three Parts of Retaliation

To prove retaliation occurred, the following must be shown:

  • If you have experienced either one of these two types of retaliation: retaliation to opposition and retaliation to participation. Retaliation to opposition is when an employee is retaliated against because they refused to obey an unlawful order, opposed discrimination, experienced or witnessed discrimination, or threatened to file a charge. Retaliation to participation is retaliation against an employee who filed a charge of discrimination or participated in an investigation of unlawful conduct.
  • Adverse action occurred against you, which can come in many forms, such as a suspension, demotion, termination, reassignment, or change in benefits or decrease in hours.
  • There is causation or direct connection between the adverse action against you and your participation of a protected activity, which is perhaps the most difficult component to prove.

Without laws protecting an employee from retaliation, their willingness to report or speak out against an employer because of an illegal activity would likely not occur. Fortunately, employees have many protections.

South Jersey Employment Lawyers at the Law Offices of Leo B. Dubler, III, LLC Help Protect the Rights of Workers

Retaliation is difficult to prove and requires the help of an experienced lawyer who knows the intricacies of the law. If you have experienced retaliation in the workplace, our South Jersey employment lawyers at The Law Offices of Leo B. Dubler, III, LLC can help. Call us today at 856-235-7075 or fill out our online form for a free consultation. Located in Mount Laurel and Atlantic City, New Jersey, we serve clients in South Jersey, including Cherry Hill, Burlington County, and Camden County.