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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:

  • The employee rightfully opposed their employee’s discriminatory acts or participated in “protected activities”
  • The employee was fired, terminated, or otherwise severely 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 the employee prove that they knew they 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. 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:

  • 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 the employer prior to or after the firing. For example, if the employer has changed their stated reason for firing someone 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

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.

Photo of page author Matthew Izzi

, LegalMatch Legal Writer and Attorney at Law

Last Modified: 09-06-2017 12:12 AM PDT

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