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How To Prove Retaliation In The Workplace


All California workers have the right to be free of unreasonable and illegal retaliation for exercising their employee rights.

If you are an employee who is facing retaliation for speaking out about workplace discrimination against yourself or a coworker, your rights are protected under both Federal and California employment laws.

Proving Retaliation in the Workplace

What constitutes retaliation?

Retaliation is any adverse or negative action that an employer takes against an employee that is a result of the employee's discrimination complaint filed against the employer, if the employee refuses to engage in illegal conduct, or if he or she assists another employee in filing a workplace discrimination complaint. These types of behaviors are known as protected activities. Any employer who retaliates against an employee who has engaged in protected activity may face significant penalties under law.

Retaliation occurs when an employer engages in an adverse action against you as an employee as a result of your protected activity. Some common examples of retaliation may include:

  • Unfair negative performance reviews
  • Denial of a promotion or a demotion
  • Denial of a raise for no valid reason
  • Increased workload
  • Unfair disciplinary action
  • Termination

These are some of the most common types of retaliation, but depending on the nature of your job, you may face other types of retaliation as well.

How do you prove retaliation?

In a retaliation claim, you must show three basic items in order to succeed in a retaliation case.

First, you must have engaged in protected activity, such as reporting harassment to human resources, the Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH).

Second, your employer must institute an adverse employment action, such as a demotion or termination.

And third, you must show that the protected activity and the adverse action were somehow related. This last one can be difficult to prove depending on the circumstances. For example, if you filed a harassment complaint, and then a month later are fired, that may appear to be retaliatory. But, what if the company fired many other employees as well as part of a major restructuring? How can you determine that the adverse employment action and the protected activity are related somehow?

Your California employment attorney can help you file your retaliation claim with the DFEH or the EEOC who will then determine if there is a causal connection between the protected activity and the adverse employment action.

No matter which agency your employment attorney chose (the DFEH or EEOC), each requires evidence that there is a connection between the protected activity and the adverse action. Sometimes there will be what is called a "smoking gun" or clear evidence of wrongdoing. In an employment retaliation case, a smoking gun would be something such as an email between managers recommending the employee's termination because of a discrimination complaint.

Another possible way to show a connection is if the reason for the adverse action given by your employer turns out to be false. One other way would be to show that employees who engaged in protected activity were treated worse than those who did not. And finally, evidence showing that the adverse action occurred shortly after the protected activity can also show a causal connection depending on the facts of your case.

Contact an Experienced Employment Law Attorney for Help

No one should ever have to fear employer retaliation. If you feel that your employee rights are being violated in the workplace, contact our experienced California workplace retaliation attorneys at Hennig Ruiz Law Firm for a free consultation.

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