Retaliation For A Discrimination Claim
This page provides answers to the following questions:
Most of the federal laws that protect employees’ rights contain provisions that make it unlawful for an employer to retaliate against someone who engages in conduct which the law protects. Proving retaliation can be difficult. The following are key questions to be asked in considering a claim for retaliation.
“Protected conduct” includes all aspects of trying to oppose or remedy discrimination, such as: filing a charge of discrimination; threatening to file a charge; complaining about, opposing or protesting perceived discrimination against yourself or another employee; assisting someone else in opposing discrimination; giving evidence or testimony to an investigator; refusing to engage in conduct that the you believe to be unlawful; and refusing to assist an employer (by testimony or otherwise) in discriminating. Under the Family and Medical Leave Act (FMLA), requesting or taking medical leave or protesting your employer’s refusal to allow you to take leave is considered protected conduct. Even making inquiries about a certain policy or practice of the company, or about your participation in any retirement or other plan covered by the Employee Retirement Income and Security Act (ERISA), is protected conduct.
Your employer must have retaliated against you in some way that is “materially adverse” and likely to “dissuade a reasonable worker from making or supporting a charge of discrimination” for the conduct to be considered unlawful. Usually, unlawful retaliation takes the form of demotion, harassment or termination, but as a result of a recent Supreme Court decision, does not have to be confined to employment or occur at the workplace, if it is enough that a reasonable person would be less likely to complain about discrimination as a result.
You must show that your employer knew that you engaged in protected conduct. This requires that the person who makes the actual decision about your job, either verbally or in writing, knew about your conduct. Telling the decision maker about your conduct is the simplest way to assure that the employer knows about you protected activity. However, there are other ways that the decision maker could have learned about your conduct. Other company employees or supervisors or the Equal Employment Opportunity Commission may tell someone at your company about your protected conduct. If you cannot prove that your employer knew about your protected conduct, you will not be able to prove a case of retaliation.
The most difficult part of a retaliation claim is showing a causal connection between your protected conduct and the adverse action taken against you. Timing can be evidence of a causal connection. If your employer fires you shortly after you file a charge of discrimination, one can infer that your protected conduct was the real reason for your termination. Other ways to establish causal connection include showing that other employees who engaged in protected activity were fired, showing that other employees guilty of the same alleged misconduct were not fired, or showing any other circumstance which justifies an inference that your termination was motivated by your protected activity.
You can disprove your employer’s stated reasons for your termination using the same kind of evidence used to show “pretext” in a discrimination case. For example, you can show that the employer’s excuse is factually untrue, that it was insufficient to have actually caused your discharge, that it is simply unworthy of credence, or so riddled with errors that your employer could not realistically have relied on its stated reason. Remember, it is always going to be up to you, the employee, to prove unlawful motivation. While difficult, it is not impossible. Circumstantial evidence can be powerful in proving your case.
The Equal Employment Opportunity Commission (EEOC) is the federal governmental agency responsible for investigating charges of retaliation on the basis of protected conduct in workplaces of 20 or more employees. Most states have their own agencies that enforce state laws against retaliation (see question 9 below).
Victims of retaliation can recover remedies to include:
- back pay,
- front pay,
- punitive damages (damages to punish the employer),
- other actions that will make an individual “whole” (in the condition she or he would have been but for the discrimination or retaliation).
Remedies also may include payment of:
- attorneys’ fees,
- expert witness fees, and
- court costs.
An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.
The employer also may be required to take corrective or preventive actions to cure the source of the identified discrimination and minimize the chance of its recurrence, as well as discontinue the specific discriminatory practices involved in the case. Your state law may allow for greater or different remedies than federal law.
Retaliation for filing discrimination claims or making discrimination complaints is prohibited by the same laws which prohibit discrimination itself. Complaints of retaliation are processed by the same state agencies following the same process as the underlying discrimination claim. Select your state from the map below or from this list to find out more about how to file a discrimination or a retaliation claim.