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.

For example, in a case against Day & Zimmerman NPS, Inc (“DZNPS”), the court held that (1) revealing an employee’s charge of discrimination to the employee’s colleagues was an adverse employment action and that the court may look at the time frame between the filed discrimination claim and (2) employer’s alleged retaliatory action to determine that an adverse action taken against an employee was a result of a discrimination charge filed. No resulting harm in an adverse action needs to be proven. For a retaliation claim to exist, the EEOC needs to prove that the adverse action could dissuade employees from making a charge of their own or communicating with the EEOC in general. This case urges employers to be careful with what information is disclosed to their employees.

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. Other employment statutes also have anti-retaliation clauses.

The US Supreme Court has ruled that an adverse employment action is any action that causes “some harm” to an employee regarding an identifiable term or condition of employment. See the case for more information.

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.

In a case alleging that an employer took a materially adverse action because of protected activity, legal proof of retaliation requires evidence that:

• An individual engaged in prior protected activity;
• The employer took a materially adverse action; and
• Retaliation caused the employer’s action.

Causation is an important factor in proving retaliation. To establish a causal link between protected activity and adverse action by an employer in a retaliation claim, a plaintiff must show that the retaliation closely followed the protected activity or provide a reasonable explanation for any delay. The timing of events and any direct evidence, such as witness statements or emails, can be important in proving this link.

See the EEOC website for more information.

You can disprove your employer’s stated reasons for your termination using the same kind of evidence used to show “pretext” (an employer’s reason for taking an adverse employment action is false) 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. 

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 the EEOC directory of state field offices.

Victims of retaliation can recover remedies to include:

• back pay,
• hiring,
• promotion,
• reinstatement,
• 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.

Yes, you can win a retaliation claim even if you lose a discrimination claim because they are separate claims and the success of one is not dependent on the other. To win a retaliation claim, you need to show that your employer took adverse action against you after you filed a discrimination claim. This adverse action could be intended to deter you from opposing discrimination or participating in the complaint process. 

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.