Man going through workplace retaliation

Proving Workplace Retaliation

When an employee speaks up in the workplace and suffers an adverse employment action as a result, they may just be a victim of workplace retaliation. To be clear, not every voiced complaint will offer legal protection if an employee is in some way chastised for speaking out. It is only when an employee brings a complaint about potentially illegal activities in the workplace that they are offered such protection. So, how do you successfully prove that you were punished for speaking out against unlawful workplace activities? Let’s take a look at how a workplace retaliation claim is proven.

Proving Workplace Retaliation

There are three key elements that need to be proven in a retaliation case. The first is that you engaged in a protected activity. Let’s first be clear on what is protected activity for purposes of a retaliation claim as it merits highlighting. A protected activity involves the employee speaking out about the violation, or the belief of a violation, of a law, rule, or regulation in the workplace. Speaking out may mean bringing a complaint to HR. It may involve participating in an investigation or acting as a witness in an EEOC case. It may involve filing a lawsuit or talking about the problem with a supervisor.

The second element that needs to be proven is that the employee suffered an adverse employment action taken by the employer. An adverse employment action may be anything that makes your job more difficult. This could range from switching your schedule to less favorable hours to receiving increased job performance scrutiny. The adverse employment action may have been in the form of a reprimand to a manager or human resources. It could also include:

  • Termination
  • Demotion
  • Poor performance reviews
  • Denied promotion
  • Denied benefits (such as a bonus)

The last element of a workplace retaliation claim is likely to be the most difficult to prove. You see, the third and final element of such a claim is demonstrating that the protected activity led to the adverse employment action. There must be a causal relationship established between the first two elements of the claim. This is difficult for many reasons, the first being that there will rarely ever be a clear statement from an employer that an employee was fired, demoted, or otherwise suffered an adverse employment action due to their engagement in a protected activity. It is much more likely that they will cover this up with some other type of excuse. Circumstantial evidence is most commonly used to prove the causation element of a workplace retaliation claim.

Because it can be so difficult to prove, documentation becomes critical in these claims. Document when you engaged in the protected activity and note any changes in your work environment that may have followed since. Monitor your performance reviews and track your history of receiving raises. These offer powerful comparison tools to show that there was a difference in how you were treated before and after you engaged in the protected activity.

Employment Law Attorneys

The team at Castronovo & McKinney protects workers’ rights. If you have suffered workplace retaliation, do not hesitate to reach out to us to discuss your options for pursuing legal recourse. Contact us today.

Thomas A. McKinney, Esq.

Thomas A. McKinney, Esq. is an experienced New Jersey Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. If you have questions about this article, contact Thomas today by clicking here.