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June 21, 2018

How to Prove Workplace Retaliation

Category: Civil Lawsuit, Employment Law, Workplace Retaliation | Tags: , , ,

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In the 21st Century, it’s hard to imagine a scenario where an employee could be fired for standing up for themselves. Sometimes that’s exactly what happens. Workplace retaliation is the name for when an employer fires an employee because they have filed a discrimination claim or participated in a discrimination hearing. We’ve pulled together some tips that you’ll need if you ever try to prove you’ve experienced retaliation in the workplace. 

Recognizing Workplace Retaliation

You must first know how to identify workplace retaliation before you can work with an attorney to prove it. Employees often suffer retaliation after they make discrimination claims in areas like:

  • Harassment or discrimination complaints based on gender, race, religion, etc
  • Workplace safety
  • Wage and hour complaints
  • Family or medical leave

As we said, an employee will either make a discrimination complaint that may include one of these areas, or they may participate in a hearing where another employee made the complaint. These two situations are considered “protected activities” and may appear as:

  • Making a complaint or acting as a witness to someone making a complaint
  • Exposing or opposing an unlawful practice
  • Exercising a lawful right

Employees must feel safe speaking up about their complaints in order to enforce discrimination laws. Many statutes are interpreted broadly to provide maximum protection from retaliation. However, after the employee participates by either issuing a complaint or giving testimony in a hearing, they may suffer a harm that usually involves a disciplinary action that can include docked wages, demotion, or termination.

Proving Workplace Retaliation

The key to proving workplace retaliation is showing that the protected activity and the negative employer response are connected. An employee must show causation, rather than coincidence. We call this the “but, for” principle. But for an employee’s participation in the protected activity, they would not have suffered the harm or adverse action that followed. There are few opportunities to show direct causation, so employees often have to use indirect evidence to show retaliation. Indirect evidence can include:

  • Timing: If the harm follows right after a complaint is issued, the retaliation looks more likely.
  • Knowledge: The employee needs to be able to demonstrate that their employer knew about the discrimination complaint or protected activity.
  • Lack of any other explanation: An employee needs to be able to show that the employer had no other reason to take adverse action other than the protected activity. For example, if an employee has had favorable reviews without any disciplinary incidents, a sudden negative review will be suspicious.

The best option for proving workplace retaliation is hiring an employment lawyer to help you uncover the signs. Protect yourself and your family by seeking outside counsel as soon as possible.

If you or someone you know has experienced workplace retaliation, contact Miller & Terry today! Call our Kansas office at (913) 624-9646 or our Missouri office at (816) 875-0470.