Proving Retaliatory Discharge

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 What is Retaliatory Discharge?

Retaliatory discharge is a term used in employment law that refers to an employer terminating an employee for filing a complaint against the company. An example of this would be when an employee reports a company for promoting a culture of sexual harassment in the workplace, and the employer discovers the complaint, leading to the employee’s termination. This would be considered a retaliatory discharge.

This type of termination is illegal and falls under the category of unlawful or wrongful termination. Unlawful or wrongful termination occurs when an employer terminates an employee for an unauthorized or illegal reason, such as in the example above.

There are several forms of unlawful or wrongful termination, including discrimination or breach of contract. The prohibition on retaliatory discharge specifically exists to protect employees who report improper or illegal acts happening within the workplace.

Employer retaliation can take many forms, including but not limited to:

  1. Not hiring the claimant;
  2. Terminating the claimant;
  3. Reducing the compensation or benefits of the claimant;
  4. Transferring the claimant to a different department against their will;
  5. Requiring that the claimant participate in activities outside of their scope of employment;
  6. Forcing the claimant to retire early;
  7. Providing an unnecessarily negative job evaluation;
  8. Demanding that the claimant waive or drop their right to sue the employer in exchange for a more favorable position in the company; or
  9. Increased surveillance of the claimant.

The law does not punish inaction, nor does it define social etiquette. For instance, ignoring a co-worker is neither prohibited nor considered an adverse action under employment law.

What are Protected Activities in Employment Law?

Employees are legally protected when reporting certain activities that take place in the workplace, including:

  1. Sexual harassment;
  2. Wage and hour law violations;
  3. Employment discrimination based on race, gender, age, etc.;
  4. A refusal to accommodate religious requests or disabilities; and
  5. Safety violations.

The list above does not encompass every type of protected activity an employee may report. The activities mentioned are the primary ones discussed and protected by federal law.

State employment laws may include Additional protected activities and depend on each case’s circumstances.

When is Retaliation Unlawful?

Unlike independent contractors, most employees in the United States are considered at-will employees, meaning that their position lasts for an unspecified amount of time. An employer can terminate an at-will employee at any time, with or without cause.

The term “without cause” means that an employee may be terminated for any reason or no reason as long as the reason is not unlawful or illegal. Retaliatory discharge is an illegal form of termination, regardless of whether the person is an at-will employee or an independent contractor.

State and federal laws also prohibit employers from terminating employees who file harassment or discrimination complaints in the workplace. These protections apply regardless of where the employee files their complaint, whether it be at:

  • The company’s Human Resources department;
  • A state employment agency; or
  • A federal government office.

For example, if an employee files a complaint regarding discriminatory practices, they must report it to a state or federal office, such as the Equal Employment Opportunity Commission (EEOC). The agency will then review the employee’s complaint and investigate the employer’s conduct. In some cases, this may require the cooperation of all employees within the company.

If an employee’s co-worker supports the complaint during the investigation, the employer cannot terminate the co-worker for cooperating with the EEOC. If the co-worker is terminated due to their cooperation, it is considered an act of retaliatory discharge.

Some jurisdictions also offer protections for employees who file workers’ compensation claims. Employers are prohibited from terminating employees for seeking workers’ compensation. If an employer terminates the employee for seeking this benefit, it is considered a retaliatory action, and the termination will be deemed illegal. In such cases, the employee may bring legal action against the employer.

Can I be Retaliated Against Without Being Fired?

Employees may face various consequences for doing the right thing in the workplace, such as wrongful termination or retaliatory discharge for filing different types of complaints, including discrimination or sexual harassment complaints. However, in some cases, an employer may be too cautious to violate the law openly, so they may attempt to create an unpleasant work environment for the employee instead.

For example, the employer might not approve a raise or promotion by giving the employee a negative performance review despite the employee not doing anything wrong. An employer may also start excluding the employee from team events and social gatherings. If an employee is an independent contractor, their employer may assign them less work or reduce their working hours.

An employer can engage in different forms of retaliation without outright terminating the employee. This should not deter employees from reporting their employer’s illegal actions. Instead, the employee should start collecting evidence if they believe they may be retaliated against for filing a complaint.

What is Needed to Prove Retaliatory Discharge?

Proving retaliatory discharge can be challenging. The legal requirements for proving retaliatory discharge vary by state, but in general, an employee must prove three elements to successfully claim retaliatory discharge, including:

  • That the employee was terminated or punished in some way by the employer;
  • That the employee engaged in activities considered protected under the law or properly opposed the employer’s illegal conduct; and
  • There is a clear link between the protected activity and the employee’s subsequent termination.

As previously mentioned, it is difficult to prove retaliatory discharge. This type of case requires substantial evidence. Specifically, an employee must show a connection between their termination and participation in a protected activity.

Two primary sources of evidence are necessary for an employee to prove that they were terminated in retaliation for an action. These sources include:

  1. Direct evidence; and
  2. Circumstantial evidence.

Direct Evidence

Direct evidence may come in the form of a written or verbal statement. The statement should demonstrate the link between the employee’s termination and the protected activity.

Direct evidence may include the following:

  • Correspondence, including emails, letters, text messages, and other forms of communication;
  • Conversations;
  • Voicemails; and
  • Witness statements.

Circumstantial Evidence

Circumstantial evidence, also called indirect evidence, is evidence that implies a connection between the employee’s termination and their conduct.

For example, if the employee can demonstrate that each time an employee files a complaint about the company, that employee is terminated, this may be used as circumstantial evidence establishing a pattern of retaliatory discharge on the employer’s part.

Do I Need an Attorney for Help with Proving Retaliatory Discharge?

It is crucial to have the assistance of a retaliation lawyer when trying to prove retaliatory discharge, as it is typically challenging to prove wrongful termination claims based on retaliatory discharge.

Unless there is overwhelming evidence, an employer will have a significant advantage and can claim they terminated the employee for another reason. Therefore, if you believe your employer wrongfully terminated you in retaliation for making a complaint, contact an attorney as soon as possible.

Your lawyer can advise you on the applicable laws, your rights as an employee, and whether you have a claim. Your attorney can assist you with gathering evidence, filing your case, and representing you in court.

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