What is Workplace Retaliation and How do Lawyers Prove it?

By Luke Worli posted 04-27-2021 01:33 PM


When employees exercise their rights that are protected under the law, employers may retaliate against them. Common activities that may incite retaliation include filing a claim against an employer for sexual harassment or whistleblowing in an attempt to thwart illegal practices. An employee facing retaliation may have grounds for a legal claim against an employer. 

What is retaliation?

Retaliation is when an employer illegally acts in adverse ways against an employee for reporting or complaining about discrimination or harassment in the workplace. Retaliation can take many forms, such as demotion, termination, salary reductions or loss of hours. An employer can intentionally exclude an employee or reassign an employee to new duties that cause hardship. 

Other common retaliatory tactics are to give warnings or unwarranted negative performance reviews. Some employers will try to build a case for termination or cite poor performance as a reason for not giving a deserved promotion. 

When workers feel they have faced retaliation in some form in the workplace, they can contact experienced employment lawyers in Pittsburgh, Philadelphia. Lawyers at the Lacy Employment Labor Law firm can advise them whether they have a case and help them to get the best settlement or jury verdict possible. 

Gathering evidence 

To prove retaliation, there must be evidence that an employee engaged in a protected activity, the employer took adverse action against the employee in response and the employee suffered some damage as a result. The biggest obstacle in proving retaliation is when employees do not document what happens from the time they lodge a complaint. 

Evidence will include any emails, letters, memos, or notes related to the complaint or report of harassment or discrimination to the employer. This includes the name and title of the person to whom the complaint was reported. 

A personnel file can show reviews and pay increases prior to a complaint and what takes place afterwards. This can provide great evidence as it can demonstrate causation between the two events. 

The attorney will also need any documents, names and contact information for witnesses of incidents or copies of offensive visuals or messages. 

Damages – what are the losses?

To recover damages, the employee has to prove that he or she suffered a loss as a result of the employer’s adverse actions. Evidence related to such losses may include pay stubs, W-2 forms, and any documents showing earnings prior to and after retaliation. Related losses, such as medical expenses that would have been covered by health care benefits prior to the complaint, can also show losses. Employee benefit plans or policies an employee had prior to retaliation may also be relevant. 

The importance of timing

Timing is important under the law and a logical inference of retaliation will depend on the timing of when changes occurred in the workplace. It needs to be clear that everything was fine before the complaint and things went downhill afterwards. The law generally requires the timing of the retaliation and the time of the complaint to be three months or less apart. 

A distinction between unfair and illegal

Not everything an employee complains about is protected under the law. The complaint has to be about a violation of a law, rule or regulation or what the employee believes in good faith is a violation. 

If an employee complains that the lighting in the office is not good and gets an adverse reaction from an employer because of this, this isn’t actionable retaliation. Employer retaliation is punishing an employee for protected activities, like filing a complaint of sexual harassment.