How to Prove Workplace Retaliation

How to Prove Workplace Retaliation

November, 2019

Although all types of retaliation in the workplace are not protected, there are laws that protect employees from retaliation that occurs after employees engage in “protected activity”. Protected activity includes complaints of discrimination or sexual harassment that employees make to their employer or to an outside agency. It also includes participating in an investigation regarding another employee who has made these types of complaints. Over 33% of discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) include claims of retaliation. 

Simply filing a claim regarding retaliation is not enough. You have to prove the claim by establishing three elements. Those elements are that you engaged in protected activity, your employer took a materially adverse employment action against you, and the cause of them taking the action was because you engaged in the protected activity. 

What are Protected Activities?

There are a number of federal laws that prohibit discrimination, such as Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act, to name just two. Ohio also has laws prohibiting employment discrimination. These laws make retaliation against employees who take part in protected activities illegal. Under these laws, there are two types of protected activities.  

The first protected activity is when an employee opposes any action deemed illegal by state or federal law, such as when an employer discriminates against them. The underlying discrimination charge does not have to be proved, as long as the employee made a complaint in good faith. 

The second protected activity is when employees participate as witnesses or assist agencies investigating complaints of discrimination or retaliation.  

What are Materially Adverse Employment Actions? 

Materially adverse actions include:

  • Demotion
  • Disciplines such as formal warnings, suspension, and involuntary administrative leaves
  • Termination
  • Reduction in salary
  • Transfers or reassignments to positions with less pay or fewer responsibilities
  • Other material changes in employment 

What is Causation?

Unfortunately, employees must prove more than the fact that they were engaged in a protected activity and that their employer took a materially adverse employment action. The adverse action and the protected activity must be connected somehow. Causation is often difficult to prove. However, there are certain types of evidence employees can use to prove causation. 

The first type of evidence in retaliation cases is timing. If the action takes place immediately after the employee engages in a protected activity, it is easier to prove retaliation.  

Employees must also show that the employer knew about the protected activity. If employees cannot prove that the employer was aware of the complaint or other type of protected activity, they will have a difficult time proving that the employer retaliated against them because of the specific activity.  

Another type of evidence involves showing that there was no other reason for the adverse action. For example, if an employee filed a complaint and shortly after the employer laid off their entire department as a cost-cutting measure, it is going to be difficult to prove retaliation. However, if only the employee who engaged in protected activity was laid off immediately afterward and there appears to be no other reason for the layoff, it will be easier to prove causation. The adverse employment action must usually occur within close proximity to the time that the employee engaged in protected activity. 

Need Help Proving Retaliation? Call Our Ohio Employment Lawyers

Have you been retaliated against for engaging in a protected activity such as filing a discrimination complaint against your employer? You will need help proving your case. At Marshall & Forman, LLC, we are the Columbus employment lawyers who want to help with your case. We can help you prove retaliation that may enable you to get reinstated at your job or obtain compensation for losses you have sustained. Call us today or contact us online to schedule an appointment with one of our attorneys.