Retaliatory discharge refers to an employee being discharged by their employer for anything other than work performance reasons. This generally occurs when the employee exercises their rights, such as reporting their employer’s wrongful conduct, or when participating in union activities. Another example is when an employee files a valid worker’s compensation claim, and is then discharged from their position.

Many state and federal laws state that retaliatory discharge is illegal, and is considered to be a type of wrongful termination. Wrongful termination occurs when an employee is fired in such a way that it violates federal, state, and local laws. Further, wrongful termination is typically an exception to any at-will employment doctrines. At-will employment allows employers to fire an employee for, essentially, any reason at all.

Employers are not allowed to terminate an employee for any conduct that is protected or lawful. There must be lawful reasons such as those associated with work performance. Retaliatory discharge can be viewed as “revenge,” and as such, it is entirely unlawful.

What are Protected Activities in Employment Law?

Protected activities are specific rights granted to job applicants and employees. There are laws in place that prohibit punishing applicants for asserting these rights. Protected activities cover all employees, including former employees who have made reports about the employer in question.

Some examples of protected activities include:

  • Requesting disability or religious accommodations;

  • Refusal to follow any orders that would result in discrimination of themselves, another employee, etc.; or

  • Resisting sexual advances and harassment, and intervening to protect others from sexual advances and harassment.

In general, protected activities fall into two main categories: disagreement with an employer’s discriminatory acts, and participation in workplace investigations or hearings. If an employee is terminated after refusing to comply with their employer’s request to behave discriminatorily, or after participating in an investigation regarding the employer’s illegal activities, there could be grounds for a retaliatory discharge lawsuit.

The employee must have a reasonable belief that the employer’s actions are discriminatory, or otherwise unlawful, when claiming retaliatory discharge due to failing to comply with the employer’s discriminatory behavior. However, participating in investigations or hearings regarding an employer’s illegal activities does not have this stipulation; simply participating in an investigation is sufficient.

What is Needed to Prove Retaliatory Discharge?

It is important to note that proving retaliatory discharge can be very difficult to prove, especially if the employer also has a legitimate reason for firing the employee. And, if the employer can prove that the employee was not actually involved in protected activities, or that there is no connection between the protected activity and the firing, filing a claim becomes that much more difficult.

Laws will vary by state; generally, the employee must prove three elements in order to have a successful retaliatory discharge claim:

  1. The employee rightfully opposed their employer’s discriminatory acts, or participated in protected activities;

  2. The employee was fired or otherwise severely punished by their employer; and

  3. There is a distinct relationship or connection between the firing and the involvement in protected activities.

Some jurisdictions also require the employee to prove that they knew they were participating in protected activities.

When filing a retaliatory discharge lawsuit, the employee will need to provide and submit evidence that shows a connection between the firing and the protected activities.

There are two types of evidence that can show this connection:

  • Direct Evidence: Direct evidence could include a verbal or written statement, proving that the employer fired the employee due to your complaints or participation in an investigation. Communications such as letters, e-mails, conversations, and voicemails could be considered forms of direct evidence; or
  • Circumstantial Evidence: Circumstantial evidence is evidence that surrounds the firing suggesting the connection between the firing and the protected activities. It may not be written or verbal, but can include examples of actions on the part of the employer before or after the firing.
    • Thus, if after several weeks the employer changed their stated reason for firing an employee, this change could be considered to be circumstantial evidence of retaliatory discharge. Additionally, if an employer has an established history or pattern of retaliatory discharge, this could be circumstantial evidence.

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

As previously mentioned, it can be difficult to prove retaliatory discharge, especially if the employer also has a legitimate reason for terminating the employee. Union members are generally protected from retaliatory actions, such as discharge, but that is not always the case.

If you have been terminated from your employment due to refusing to participate in discriminatory actions, or because you participated in protected activities, you should consult with an attorney.

A knowledgeable and qualified employment attorney will help you compile evidence, discuss your options, and assist you in filing a lawsuit. Further, they will represent you in court, if necessary.

Additionally, state laws vary when it comes to how much responsibility is on the employee to prove retaliatory discharge; an employment attorney will detail your state’s laws and ensure you have everything you need to make a claim.