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Retaliation is when an employer takes adverse employment action against a worker for engaging in a protected activity or refusing to participate in an illegal act. If a worker reports wage theft to state administrators, for example, and gets fired because of it, he or she is a victim of retaliation. If you believe you have experienced retaliation, you may be entitled to financial compensation. It is up to you or your lawyer to prove your case.
Retaliation occurs when an employer punishes an employee for engaging in a protected activity. Many things fall under this category, including complaining about a work issue to a manager, reporting harassment or discrimination to the Equal Employment Opportunity Commission (EEOC), filing a complaint with the Occupational Safety and Health Administration (OSHA) about a safety problem, assisting in an agency’s investigation of a workplace, and refusing to participate in illegal activities.
Retaliation can cause a victim undue harm. It can lead to the victim losing his or her job, missing wages and work opportunities, forfeiting employment benefits such as health insurance, experiencing damage to his or her professional reputation, and suffering emotional distress. If you experience retaliation after engaging in a protected activity or refusing to go along with an illegal act, you have the right to file a lawsuit against your employer in pursuit of compensation. As the filing party, or plaintiff, it is up to you or your attorney to prove your claim. Three elements of proof are required for a retaliation claim to succeed.
The first element is that you participated in a protected activity or refused to obey your employer who asked you to be complicit in an illegal act. If you reported your employer for discrimination, sexual harassment, a broken law or another issue, you may be facing retaliation to participation. If you refused to participate in illegal activity, it is known as retaliation to opposition.
The second element of a retaliation claim is that you suffered some type of punishment, penalty or adverse employment action. These are the “damages,” or compensable losses, for which you are seeking financial compensation from your employer with the lawsuit. They may include the loss of your job, work suspension, failure to promote or a decrease in your benefits. They can also refer to discrimination, harassment, verbal abuse or a hostile work environment.
The final element of proof is a causal link between the adverse employment action and your participation or opposition. You must have evidence connecting your engagement in a protected activity or refusal to obey an illegal act with the adverse work-related consequences that you faced.
The most difficult element to prove is causation. Typically, proof of causation comes in the form of circumstantial evidence. This is evidence that relies on a jury’s inference to come to a conclusion of fact. An example of circumstantial evidence is a timeline of events, such as that you were a valued employee for years, with positive performance reviews and raises, until you reported harassment to the EEOC – at which point you were suddenly terminated.
Retaliation cases can be difficult to prove if there is no direct evidence, such as an employer admitting retaliation to a witness. For this reason, it is important to file your claim with assistance from a lawyer. A lawyer can draw connections between the employment action and your protected activity, as well as tell a compelling story to a judge or jury. A lawyer will increase the odds of winning your retaliation case and obtaining the compensation that you deserve.
Contact Scott & Winters Law Firm today to start with a free consultation with an attorney.