Proving Retaliatory Discharge
Authored by Ken LaMance
, LegalMatch Law Library Managing Editor and Attorney at Law
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What is considered to be Retaliatory Discharge?
in the workplace refers to an employer punishing an employee for their actions by terminating them. The term almost always indicates that the employee was terminated for reporting the employer’s wrongful conduct. According to state and Federal laws, retaliatory discharge is illegal and is considered to be a type of wrongful termination
Therefore, employers are not allowed to terminate workers for conduct that is “protected” or lawful. Termination must occur only for valid reasons, such as poor work performance or illegal employee activity. “Retaliatory” means something similar to “revenge”, in that the employer is firing the employee in order to get even with them.
What are the Elements for Proving Retaliatory Discharge?
In order to succeed on a retaliatory discharge claim, the employee must prove three elements:
- The employee rightfully opposed their employee’s discriminatory acts or participated in “protected activities” (more below)
- The employee was fired, terminated, or punished by the employer
- There is a distinct relationship between the firing and the protected activity. (In some jurisdictions, it may also be required that you prove that your employee knew that you were engaged in the protected activity
What is a Protected Activity?
There are basically two forms of protected activities. If the employer has fired the employee because they engaged in the following activities, it could be grounds for a retaliatory discharge lawsuit:
- Disagreement with employer’s discriminatory acts: An example of this is when an employee refuses to comply with their employer’s request to submit a discriminatory note to an office mate. The employee must have a reasonable, good faith belief that the employer’s actions are discriminatory or otherwise unlawful
- Participation in investigations or hearings: An employer cannot fire their workers if they have participated in an investigation regarding the employer’s illegal practices. Employees should be free to participate in such investigations, and termination based on such participation is seen as a interfering with justice. The employer cannot terminate the worker even if the results of the investigation are not yet conclusive. Also, this type of protected activity does not require the employer to have a reasonable belief in the validity of the claim; participation in the investigation is sufficient
Protected activities cover all employees, including former employees who have made reports about the employer. Also, the employee need not be part of a protected class (i.e., based on race, religion, sex, etc.). Even if they do not belong to the class of workers that was discriminated against, they cannot be fired for filing complaints if they have witnessed discrimination in the workplace.
What Kind of Evidence is Needed to Prove It?
If you are filing a retaliatory discharge lawsuit, you will need to submit evidence which shows a connection between the firing and the protected activity. In other words, the evidence must show that the employer fired you because you engaged in the protected activity. There are two types of evidence:
- Direct Evidence: This is a verbal or written statement proving that the employer fired you due to your complaints or participation in an investigation. It may include such communications as letters, e-mails, or conversations
- Circumstantial Evidence: This is evidence surrounding the firing incident which suggests the connection between the firing and the protected activity. It may not be verbal or written, but can include the actions of your employer prior to or after the firing. For example, if the employer has changed their stated reason for firing you after several weeks, it may be circumstantial evidence of retaliatory discharge. Another example is if the employer has a history or pattern of retaliatory discharge
Finally, you should know that it may be very difficult to prove retaliatory discharge if your employer also has a legitimate reason for firing you. For example, if you have a poor attendance record, your employer might cite this rather than retaliation as their reason for firing you.
Also, if the employer is able to prove that you were not engaged in protected activity, or if there is no connection between the protected activity and the termination, it could have negative effects on your legal claim.
Do I Need a Lawyer to Prove Retaliatory Discharge?
If you feel that you have been a victim of retaliatory discharge, you should contact a lawyer immediately to find out your options. An employment attorney can help you prepare your claim, and can determine whether you have a valid claim according to workplace statutes.
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Last Modified: 12-08-2010 03:51 PM PST
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