How Do I Prove Workplace Retaliation?

Most people know that retaliating against someone because of their ageracedisability, or reporting violations of law is illegal. However, what they do not know is how to prove that the retaliation was due to one of these protected characteristics or activities.

In order to prove workplace retaliation, you must show that:

  1. You engaged in a protected activity
  2. Your employer took an adverse employment action against you
  3. A link between the protected activity and the adverse employment action

What is Considered a “Protected” Activity?

There are essentially two types of protected activity 1) opposition, and 2) participation.

Opposition: this means that you opposed some illegal act such as discrimination, harassment, or retaliation by your employer. Keep in mind, that the discrimination, harassment, or retaliation does not have to occur to you. For example, if you suffer an adverse employment action because you report that another co-worker is suffering, then you may have a claim.

Participation: participation means you filed a charge with the Equal Employment Opportunity Commission (EEOC), the Department of Fair Employment and Housing (DFEH), a worker’s compensation, or any other formal judicial proceeding. You cannot be retaliated against for participating in any of these proceedings.

What is Considered an “Adverse” Action?

In order to successfully sue for retaliation, you must show that your employer took some adverse employment action against you. An adverse employment action essentially means that your boss took some negative action towards. Some negative actions are easy to spot. This includes demotions, a termination, or a decrease in pay. However, an adverse action is not always so conspicuous. A list of adverse actions includes:

  • Termination
  • Decrease in pay
  • Demotion
  • Changing the location of where you work
  • Withholding benefits
  • Receiving poor performance reviews as a result of some protected action you took
  • Formal reprimands
  • Reassignments that have no reason but to punish the employee
  • Exclusion from work activity and decision-making
  • Could shoulder treatment
  • Verbal/physical abuse
  • Being passed up for promotion

What Are Some Tips for Employees Facing Workplace Retaliation?

While you cannot prevent your employer from retaliating against you, there are some ways to help prove your workplace retaliation case. This includes:

  • Save all the correspondence, emails, texts, and messages between you and other people you work with
  • Keep a work diary and notate every time you feel like you’re being retaliated
  • Take note of all the people in the company who are and who are not being treated the way you are being treated
  • Do some research and find out if the retaliation has happened to anyone else in the company in the past
  • Review your company’s handbook and policies to see if they are deliberately violating those policies
  • Try to communicate with your supervisor in writing as much as possible
  • Make a formal complaint in writing outlining why you feel you are being retaliated against and how it makes you feel

While this list is not complete, it can help when prove your retaliation case should you decide to hire an employment attorney.

How Much Time Do I Have to File a Workplace Retaliation Lawsuit?

There is something known as a “statute of limitations” which could bar your recovery in an employment case. A statute of limitations refers to the amount of time an individual has to file a lawsuit before time runs out. If the statute of limitations passes, then the chance of recovery is no longer available.

In California, before you can file a lawsuit, you need to obtain a right-to-sue letter from either the Equal Employment Opportunity Commission (EEOC) or the Department of Fair Employment and Housing (DFEH). You have 180 days from the last retaliatory act to obtain a right-to-sue letter from the EEOC. After you obtain this right-to-sue letter you have another 90 days to file your lawsuit in a court of law.

On the other hand, the DFEH gives you one year from the date of the last retaliatory act to obtain aright-to-sue letter. After that, there is a one-year statute of limitations to file suit in a court of law.

How Do I File A Workplace Retaliation Lawsuit?

The steps to filing a lawsuit depend on the state in which the retaliation occurred. After you have obtained the right to sue letter, the next step is to file suit in a court of law. If the retaliation came in the form of a termination, then you may have an extra cause of action. For more explanation on this, visit “How To File A Wrongful Termination Lawsuit.”

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