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Workplace Retaliation: A Review of How to Prove a Claim Against an Employer

Retaliation claims under employment and whistleblowing laws are a frequent subject of our blog posts. (Click here to see our Workplace Retlation posts.) Those laws are an important source of employee protections in the workplace.

The Equal Employment Opportunity Commissions (EEOC) has just issued Enforcement Guidance on workplace retaliation under federal employment discrimination laws. This Guidance provides an excellent review of what is necessary to prove a retaliation claim.

While the Guidance does not break any new significant ground, it does bring good news for employees by broadly defining the following three elements necessary to prove a claim of retaliation:

  1. An employee’s participation in a protected activity – generally a complaint of discrimination or harassment;
  2. An adverse action taken by the employer/manager against the employee; and
  3. A causal connection between the protected activity and adverse action.

Protected Activity: The Guidance says that the protected activity can occur explicitly or implicitly. In other words, an employee does not actually have to use the word “discrimination” and the employee’s comment or conduct must be examined in its entirety and in contex; providing support for a fellow worker’s discrimination claim may be considered protected activity. The Guidance also points out that an employee does not have to prove that his or her complaints are accurate; as long as the employee has a reasonable, good-faith belief that an employer’s conduct was discriminatory, then the employee’s conduct or comment is protected.

Adverse Action: Retaliation law prohibits an employer taking adverse action against an employee for engaging in protected activity. The EEOC Guidance expands the definition of “adverse action” to include anything that could reasonably be likely to deter protected activity, even if it has no tangible effect on a person’s employment. The Guidance further states that the adverse actions can be activities that are not work-related and could take place outside of work, and it could also be taken against a third party who is closely linked to a complaining employee; for example, threatening to terminate a spouse of a complaining employee would constitute adverse action.

Causal Connection:  To prove a claim of retaliation, an employee must establish a causal connection between the protected activity and the adverse action. The Guidance notes that suspicious timing, incriminating oral or written statements, and/or evidence of how comparable individuals were treated differently can show a causal connection.

If you have any questions or seek information about laws pertaining workplace retaliation or any other types of employment issues, please contact Lebau & Neuworth at 888-456-2529 or lebauneuworth.com/contact-us.

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