Proving Retaliatory Discharge

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What Is Considered to Be Retaliatory Discharge?

Retaliatory discharge refers to an employer terminating an employee for anything other than a work-performance related reason. The term most commonly refers to an employee being terminated for reporting the employer’s wrongful conduct. According to many state and federal laws, retaliatory discharge is illegal and is considered to be a type of wrongful termination.

Thus, 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” is akin similar to “revenge,” and as such is entirely unlawful.

What Are the Elements for Proving Retaliatory Discharge?

While these laws vary by state, the employee must generally prove three elements to prevail in a retaliatory discharge claim:

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:

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. Even if they do not belong to a protected class of workers, they cannot be fired for filing complaints if they have witnessed discrimination in the workplace.

What Kind of Evidence Is Needed to Prove Retaliatory Discharge?

When filing a retaliatory discharge lawsuit, the employee needs 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 the individual because they engaged in the protected activity. There are two types of evidence that can show this connection:

Is Proving Retaliatory Discharge Difficult?

Be aware that it may be very difficult to prove retaliatory discharge if an employer also has a legitimate reason for firing an employee. For example, if the employee has a poor attendance record, the employer might cite this as their reason for firing that employee. Additionally, if the employer is able to prove that the employee was not engaged in protected activity, or if there is no connection between the protected activity and the termination, it could have negative effects on a retaliatory discrimination claim.

Do I Need a the Help of a Lawyer?

If you feel that you have been a victim of retaliatory discharge, you should contact an employment lawyer immediately to find out your options. An 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: 07-28-2014 12:10 PM PDT

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