What is Retaliation? How Do I Prove it?

Experiencing retaliation from an employer can put even the most diligent worker in a tight spot. It’s always challenging to maintain a professional demeanor and remain dedicated when your employer is out for revenge because of something you’ve said or done. What are your rights when situations like this occur, and are there legal remedies for such actions from your employer?

The answer is yes. There are legal remedies and resources for retaliation that every worker should know about. Particularly as no worker is immune to a situation that calls for a formal response to the retaliatory actions of an employer.

The Legal Response To Retaliation

First, it should be noted that federal law takes a specific approach to retaliation. Not all retaliatory actions are covered in employment rights laws. In fact, these laws only apply when there is an instance of discrimination associated with the retaliation a worker experiences.

For instance, a worker being retaliated against by a co-worker may have legal remedies under criminal laws if the retaliation goes far enough, but not under the main source of legal protection for most workers – a federal law known as Title VII of the Civil Rights Act.

Title VII and Retaliation

Title VII covers workers in companies with over 50 employees by protecting them from certain well-known types of employment discrimination. These include race, color, national origin, sex, age, disability and religion. Violations of this law can lead to investigation by the EEOC, or Equal Employment Opportunity Commission, the federal agency dedicated to protecting the rights of employees and responsible for enforcing Title VII.

In most instances, the type of retaliation that has legal remedy under Title VII is a result of at least one of the types of discrimination noted in Title VII. In other words, in order for Title VII to apply, a worker must prove that he or she has experienced retaliation for complaining about Title VII discrimination or due to participation in Title VII discrimination proceedings.

Dealing with Retaliation Beyond Title VII

Other federal employment rights laws can also be useful in obtaining legal remedies for retaliation. For instance, the Americans with Disabilities Act specifically prohibits employment discrimination against persons with disabilities, as well as prohibiting retaliation against employees who complain about disability discrimination or who participate in disability discrimination proceedings.

Proving Retaliation in the Workplace

Proving retaliation can be tough, but it’s not impossible. In fact, several notable cases have outlined the best ways to prove retaliation in the workplace.

Just recently in a case called University of Texas vs. Nassar, the Supreme Court established a “but for” causation standard for employment retaliation cases. This means that in order to prove retaliation, a worker must show that the adverse action taken against them, whether it was termination from employment or some other disagreeable action, would not have happened but for the discrimination the worker has complained about.

Another case, Burlington Northern and Santa Fe Railway Company v. White, outlined a broad definition of retaliation in favor of employees. This case established that the retaliation a worker complains about need not be employment related in order for the worker to obtain legal remedies. In other words, even if retaliation from an employer consists of unwanted verbal abuse outside of work, this could be actionable under Title VII.

This case also answered the question of how extreme or harmful the retaliation must be in order to be actionable under Title VII. The court ruled that any retaliation experienced must be at least considered “materially adverse” from the perspective of a reasonable employee in order to be actionable.

Materially adverse to a reasonable person can seem a bit vague for the average employee to understand. Basically, it means that considering the facts and circumstances of the case, the acts of retaliation from an employer had a very high likelihood of dissuading a reasonable worker from reporting the initial acts of discrimination.

Exploring Various Types of Retaliation

The range of retaliation brought up in actionable cases can vary. For instance, in the case mentioned above, the employee complained that being reassigned to much more strenuous duties was an act of retaliation based on her reports of harassing sex discrimination on her job as a forklift operator.

The retaliation could also come in other forms as well. Sometimes it’s termination, but it can also arise when an employer willfully takes action to damage an employee’s reputation, demotes an employee or even refuses to promote an employee even though he or she is fully qualified.

The main point with retaliation claims is that an employee must be prepared to show that the acts of retaliation would not have occurred unless the employee had some type of discrimination to complain of or report or testify about in a court proceeding. This key fact establishes that the retaliation is sufficiently associated with a Title VII discriminatory act.

Remedies for Retaliation

Dealing with retaliation can make many employees lose heart, but employees must keep in mind that the law is here to protect them, and it provides legal recourse when violations occur. For purposes of Title VII retaliation, an employee can look forward to a number of remedies if the case is successful.

Generally, if a court determines an act of retaliation has occurred, an employee can be reinstated if he or she has been terminated, receive back pay, obtain reimbursement for reasonable costs and expenses and even get transfer preference. An employee is also entitled to other remedies as deemed necessary by the presiding court.

Obtaining Justice for Retaliation

Retaliation is a serious matter that no employee should have to experience without competent legal support to address it. The next time you experience retaliation for complaining about discrimination or due to participation in discrimination court proceedings, consider your options under federal law, and know that you have important and well-established rights and remedies available to you.