Employees who file complaints about discrimination or harassment are legally protected from retaliation by their employer. You should feel free to assert your rights without fear of punishment, but some employers may still retaliate. Here’s what you should know before filing a retaliation lawsuit.
What You Need to Prove
If you are planning to file a retaliation lawsuit, you will need to prove three things:
- You engaged in a protected activity, such as reporting discrimination or harassment.
- Your employer took action against you.
- There is a causal link between your activity and your employer’s action.
Under all federal laws prohibiting discrimination, there are two main types of protected activities:
- Opposition: Employees who oppose any act that is illegal under these laws, including discrimination, harassment, and retaliation, are engaged in a protected activity. Among those protected are the employees who make the complaint, as well as those who participate in an internal investigation as witnesses. Opposing illegal acts can include complaints about the acts, as well as refusing to go along with illegal requests.
- Participation: Employees who file a charge of discrimination with the EEOC or other state agency, participate in an agency investigation, or file or take part in a discrimination or harassment lawsuit are protected from retaliation.
Any “materially adverse” action against an employee may be considered retaliation if the action might be used to deter an employee from filing a complaint otherwise assisting an investigation. Examples of negative actions include:
- Disciplinary actions
- Termination of employment
- Salary reduction
- Negative evaluations
- Transfer or denial of transfer
- Change in job assignments, job duties, shift
- Change in terms or conditions of employment
You must also prove that the negative action was somehow related to your participation in a protected activity if you wish to file a retaliation lawsuit. It can be difficult to prove unless your employer admits to it, but there may be indirect evidence. This evidence may include:
- Timing, if the negative action comes shortly after the protected activity occurs.
- Knowledge, if the person who is responsible for the action knew about the protected activity.
- Lack of other explanations, if there is no other reasonable cause for the negative action.
If your employer has retaliated against you after you have asserted your rights, you should speak to our Hollister employment law attorney. At Marder Employment Law, we are committed to helping California employees protect their rights in the workplace. Don’t’ wait to get help.