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Employment Law Firm in California

How Do I Prove Employer Retaliation?


Retaliation is any illegal action an employer takes against an employee to punish him or her for engaging in a legally protected activity. In fact, retaliation was the most common type of charge filed with the Equal Employment Opportunity Commission (EEOC) in 2018.

There are basically two types of retaliation. There is retaliation to opposition, which happens when an employer requires an employee to perform an illegal act. Then there is retaliation to participation, which happens when an employer takes adverse action against an employee for engaging in a protected activity, such as:

  • Participating in an agency investigation.
  • Filing a charge with the EEOC or California’s Department of Fair Employment and Housing.
  • Participating in a discrimination lawsuit.

In summary, the Equal Employment Opportunity Commission (EEOC) does not allow an employer to punish any job applicant or current employee simply for asserting their rights to be free of discrimination in the workplace.

More examples of protected activities include:

  • Disboeying employer orders that may result in discrimination.
  • Resisting harassment or intervening to protect others from harassment.
  • Filing an EEOC charge, complaint, investigation, or lawsuit.
  • Discussing employment discrimination or harassment with an employer.
  • Discussing wages or benefits with an employer or co-worker.

A discrimination or harassment claim must be made in good faith in order to be entitled to protection from retaliation. Furthermore, if an employer disciplines or fires you for not completing your job duties or other misconduct, they are not guilty of retaliation.

Finally, if you do decide to file a lawsuit for retaliation, you’ll have to prove:

  1. That you engaged in a protected activity.
  2. That your employer took adverse action against you.
  3. That there is a direct connection between your activity and your employer’s action.

How Does A Retaliation Claim Work?

There are two types of protected activity:

1) Opposition. An employee who opposes any illegal form of discrimination, harassment, or retaliation is engaged in a protected activity. Protection extends not only to employees who complain directly, but also to those who participate in an internal investigation.

In short, when an employee communicates to his or employer that he or she believes the employer is guilty of harassment or discrimination, that employee will be entitled to protection from retaliation.

2) Participation. An employee who files a discrimination charge with the EEOC, participates in an investigation, or files a lawsuit is also protected from retaliation.

What Are Examples Of Employer Retaliation?

Under Title VII, any adverse action taken against an employee may count as retaliation if this action serves to deter an employee from filing a complaint of harassment or discrimination, or engaging in a protected activity. These laws are interpreted broadly and provide ample protection from various forms of retaliation.

Examples of adverse actions include:

  • Demotion.
  • Discipline.
  • Termination.
  • Salary reduction.
  • Poor performance evaluations.
  • Change in job assignments, duties, or shifts.
  • Change in the terms and conditions of employment.

How Can I Prove Employer Retaliation?

It takes more than showing an employee engaged in a protected activity and was then the victim of a negative job action — a direct connection between the two must be established. This is known as causation.

Let’s consider an example. Say that an accountant complains to her Human Resources (HR) department about sexual harassment. She is then laid off with the rest of her team  because the company needed to scale back costs. This employee would have a tough time proving she was fired for complaining about sexual harassment, because the adverse action was not necessarily related to her complaint. 

Proving causation directly is challenging. Let’s consider a scenario where causation is clear cut. For example, if a supervisor says, “If you file a complaint, I will fire you”, that’s an obvious example of causation. In this case, an employee can easily show a link between the two events.

Typically, employees must present indirect evidence of retaliation. This includes:

  1. The Timing Of The Adverse Action. If the adverse action that was taken against you came immediately after your complaint, retaliation looks much more likely. Analyzing the timing of an adverse action is one of the most common ways of proving retaliation.
  2. The Employer Was Aware Of The Complaint. If you are making a retaliation claim, you must prove that the employer who took adverse action against you actually knew about the complaint. It is impossible to prove your employer acted against you because of your complaint if they didn’t know about it in the first place.
  3. There Is No Other Explanation. If you can prove your employer had no other reason for taking the adverse action against you, or that your employer’s reason for the action it took doesn’t make sense, you will likely have a stronger argument. Let’s say that your pay is cut immediately after filing a complaint. Your employer claims your entire department’s pay was cut, but only yours was affected. Suddenly, your employer’s explanation appears suspicious if your pay was cut and your other coworkers didn’t have their pay affected.

What Can West Coast Employment Lawyers Do For You?

If you have made up your mind to take action, it is important to work with an attorney that specializes in cases like yours. The workplace retaliation lawyers at West Coast Employment Lawyers have extensive experience handling workplace retaliation cases. We will work tirelessly to gather the facts, find and interview eyewitnesses, hire experts, and fight for your rights.

We work on a contingency basis, which means we only get attorney’s fees if we are able to recover for you. Our legal team is available 24/7 and will take care of your case from start to finish. For a free no-obligation consultation with a workplace retaliation attorney in California, contact our office at 1-800-247-9235.


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