In employment law, the term “retaliatory discharge” refers to when an employer discharges an employee for filing a complaint against the company.

For instance, if an employee reports the company for encouraging sexual harassment in the workplace and their employer finds out about the complaint and fires them for it, then this would be considered an example of retaliatory discharge. This type of firing is illegal.

Retaliation firing (or discharge) is a form of wrongful or unlawful termination. Wrongful or unlawful termination occurs when an employer fires an employee for unauthorized or illegal reasons like in the example above.

While there are many different forms of wrongful or unlawful termination (e.g., discrimination, breach of contract, etc.), retaliation firing specifically exists to protect employees who report illegal or improper acts within the workplace.

What are Protected Activities in Employment Law?

As discussed above, employees are protected by law for reporting a number of activities, including:

It should be noted that the above list does not contain every type of protected activity for employees. These happen to be the main activities discussed and covered by federal law. However, there also may be additional protected activities found under state employment laws and based on the circumstances of an individual case.

When Is Retaliation Unlawful?

Many employees are hired under the conditions of “at-will” employment. This means that their job will last for an unspecified amount of time (as opposed to an independent contractor), in which case their employer will have the right to terminate them at any point and with or “without cause.”

The phrase “without cause” implies that the employee can be fired for any reason or for no reason at all, so long as that reason is not found to be illegal or unlawful. Since retaliatory discharge is an illegal form of firing, it will not matter if the worker was an “at-will” employee who can be fired without cause. Retaliatory discharge is illegal regardless of whether the person is hired “at-will” or an independent contractor.

In addition, federal and most state laws prohibit employers from firing workers who file a complaint for discrimination or harassment in the workplace. This protection extends to any location where the worker decides to make the complaint, such as to their company’s Human Resources department, in a state employment agency, or at a federal government office.

For example, when a worker has a complaint regarding discriminatory practices, they will need to file a report with a federal or state office like the Equal Employment Opportunity Commission (“EEOC”). The agency will then conduct an investigation into the company based on the worker’s complaint. Sometimes, this will require the full cooperation of every employee within a company.

If during the investigation one of their co-worker’s supports their complaint, the employer cannot terminate their co-worker for helping the EEOC with their investigation. If they do, it will be considered an act of retaliatory discharge.

In addition, some states also offer protections for employees who file workers’ compensation claims. An employer cannot terminate an employee for seeking workers’ compensation. Again, this is a retaliatory act and the discharge will be considered illegal. Thus, the employee may bring legal action against their employer.

Can I Be Retaliated Against Without Being Fired?

Wrongful termination for retaliation is only one of the consequences that an employee may face for doing the right thing, such as filing a discrimination or sexual harassment complaint. Some employers will know better than to openly violate the law, so instead they will try and make the work environment a much more unpleasant place for the employee.

For instance, they may not approve a raise or promotion by giving the employee a bad performance review, even though the employee never did anything wrong. Alternatively, the employer may start excluding the employee from team events and social gatherings. If the worker is an independent contractor, they may give them less work or reduce their hours.

There are many forms of a retaliation that an employer can take without outright firing an employee. This should not deter the employee from reporting illegal actions, but the employee should start collecting evidence if they suspect they are being retaliated against for doing so.

What is Needed to Prove Retaliatory Discharge?

Proving retaliatory discharge can be very difficult. Although the legal requirements will vary by state, the employee generally must prove the following three elements in order to successfully claim retaliatory discharge, which includes:

  • The employee was terminated or somehow punished by the employer;
  • The employee engaged in activities that are 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 subsequent termination.

As previously mentioned, retaliatory discharge is very hard to prove. These cases also require a lot of evidence. Specifically, the employee will need to show that there was an apparent connection between the firing and their participation in a protected activity.

There are two primary sources of evidence that are necessary for an employee to prove that they were fired for retaliation. This includes:

  • Direct evidence: Direct evidence can be in the form of either a verbal or written statement. The statement will have to show the link between the firing and the protected activity. This evidence may consist of correspondence, such as emails, letters, texts, etc. Since direct evidence can also be verbal, things like conversations, voicemails, and witnesses can be used as well.
  • Circumstantial evidence: Circumstantial or indirect evidence is evidence that implies there was a connection between the firing and the employee’s conduct. For instance, if the employee can show that every time someone files a complaint about the company the employer fires that person, then this can be used as circumstantial evidence that establishes a pattern of retaliatory discharge.

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

It is often hard to prove wrongful termination claims when they are based on retaliatory discharge. Unless there is overwhelming evidence, the employer will have a significant advantage and can simply say they discharged the worker for some other reason. Thus, if you believe that your employer wrongfully discharged you in retaliation for making a complaint, then you should contact a local employment lawyer as soon as possible.

An experienced employer lawyer will be able to explain the laws that pertain to your matter, the rights you have as an employee, and whether you have a supportable claim. Your lawyer can also help you gather evidence, file a case, and provide representation in court. Additionally, if your employer asks to settle the case, your lawyer can handle settlement negotiations as well.