How Does an Employment Lawyer Evaluate and Prove Retaliation in the Workplace?

Retaliation is a word that carries some often heavy connotations. When it comes to workplace retaliation, it normally involves something like the following –

> Firing an employee, perhaps the most extreme example of adverse action

>> Demoting an employee

>> Changing an employee’s role to his or hers disadvantage or displeasure

>> transferring the employee

>> Altering the employee’s role

>> Withholding a salary increase or promotion

> Workplace abuse or harassment or bullying

Proving retaliation in the workplace usually involves circumstantial evidence that connects the retaliatory conduct from the employer to the adverse effects upon the employee

These are all actions that could be called employment discrimination and can lead to a claim of workplace retaliation.

The ability to prove retaliation is perhaps easiest where an employer simply fires or demotes an employee. Generally of course this action is

unlikely to occur immediately after the activity that prompts the firing or demotion. it will usually occur after some considerable time and

the employer will dress up the action to avoid negative action from the employee and the threat of a retaliation lawsuit.

They will therefore tend to justify their actions by providing poor performance reviews, reprimanding the employee for unwarranted reasons.

But remember too that the employer may make life at work so unpleasant or difficult that there is effectively a constructive dismissal where the employee leaves for those reasons.

Proving the facts of the case depends at all times on the types of retaliation that are being provided. The firing and/or demotion is perhaps one of the simplest, but an employer purporting to act within the legal process is going to attempt to avoid any charge of legal action by taking the steps mentioned.

Removing Benefits or Reducing Salary

The removal of benefits or a salary reduction is another employer retaliation situation that is actionable. There are any number of ways in which this can be proven in terms of the changes to salary, commissions, hourly rates and so forth.

But there may also be changes to any benefits or entitlements that the employee may be able to obtain, or a change in sick leave entitlements or a removal of overtime opportunities.

Proving a causal link between the monetary or benefit changes to prove wrongful termination is something that a good lawyer can establish once the kind of evidence necessary is assembled.

Transfers and Reassignments

This is the sort of retaliation measure that can be taken somewhat more easily by many employers and yet it is common for that reason alone. A reasonable employee may well comply and take the change at face value, but it too is something that can well lead to the filing of a retaliation complaint.

There may also be changes to work schedules that create issues for the employee. This may involve increasing shifts or altering them regularly in a way that makes things difficult for the employee both at work and privately.

Some employers will use such tactics as a ‘warning shot’ to deter others from being troublesome, which can also land them in trouble with federal law as well as state laws if they are trying to avoid disclosure of some illegal activity, discrimination charge or disciplinary actions.

Promotion Problems

Obviously another key area of retaliation by the employer removing the employee’s ability to get promoted or to receive a raise. That too is common enough, with the need to obtain sufficient evidence to take a discrimination case.

Proving the Retaliation Claim

As mentioned, with these examples the principle issue is proving causation – the link between the retaliation by the employer and the detriment suffered by the employee.

The connection will depend upon a number of factors, including the actual law being used to establish the illegal activities, breach of labor laws, safety violations of whatever the case may be.

There are anti-discrimination laws, going to issues of sexual or religious discrimination for instance, and there are whistleblower retaliation claims under legislation like the Sarbanes-Oxley Act.

Under the Fair Employment and Housing Act (FEHA) there can be action for retaliation lawsuits and so too under the Age Discrimination in Employment Act (ADEA).

Any good experienced employment lawyer will be aware of the various Acts and State laws that apply and will know what action to take and what evidence needs to be assembled to take a successful case

The Protected Activity

When taking a case for retaliation it is necessary to establish that the action taken by the employee was a protected activity (that is, legally protected and something that cannot be retaliated against as outlined below), it must also result in retaliatory action that produces negative consequences in the workplace and the two must have a causal link.

“Protected Activities” Examples

There are a wide variety of activities that are legally protected under the law, which include the reporting of potentially unlawful activity by the employer, sexual or racial discrimination, the making of a workers’ compensation claim and other activities.

The actual nature of the activities that are protected will depend upon both federal and state law. For instance in New York in 2022 the New York State Governor signed two new bills into law that expand non-discrimination protections in the workplace. New York now prohibits employers from releasing employee personnel files in retaliation for such employee’s engagement in protected activity.

Apart from the laws relating to such matters, the employee will need to establish that the employer’s actions breached his or her legal rights through what will often be circumstantial evidence. This sort of evidence is some indirect link between the protected activity and the negative or adverse activity in the workplace, such as the development of a hostile work environment, or a reduction in performance reports, or uneven treatment of employees.

Once that or those matters are proven then an unlawful retaliation lawsuit can succeed. They are often difficult, but so too is the environment in the workplace that has resulted from the adverse activity.

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