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Retaliation/Reprisal Claims
I think my employer fired me because I made a complaint regarding discrimination on the basis of sex. What constitutes retaliation? Retaliation occurs when an employer makes a decision that adversely affects a woman because she has opposed any unlawful employment practice under Title VII or because she has filed a claim, testified, assisted or participated in any manner in an investigation regarding a Title VII claim. How do I prove a claim of retaliation?There are generally four legal requirements that you must meet in order to establish a retaliation claim. These requirements may vary slightly according to the region of the country in which you reside. The four legal requirements are that:
1. you engaged in protected activity;
2. the employer was aware of that activity;
3. you suffered an adverse employment action; and
4. a connection between the protected activity and the adverse employment action existed. It is important for you to know that, although courts try their hardest to apply the law in parallel fashion across the country, sometimes different courts will place a different level of importance on one requirement over another depending on the circumstances surrounding each case. How do I prove that I was engaged in protected activity?If you file a claim with the EEOC (WWW.EEOC.GOV), you will be considered to have engaged in protected activity. Reporting sex discrimination in violation of Title VII to your supervisor or to the department of human resources will be considered protected activity as well. How do I prove that my employer was aware of that activity?Your employer will generally be considered informed if it has received notification of the complaint from you or some other authority. It is imperative that the employer be aware of the complaint prior to making any decision that adversely affects you because its knowledge of your participation in protected activity will strengthen your argument of retaliation. How do I prove that I suffered an adverse employment action?A decision that adversely affects you, such as firing or demotion, will generally suffice. How do I prove that there was a connection between my participation in protected activity and the adverse employment action?You may generally establish a connection by simply showing that the adverse employment action took place after you engaged in protected activity. The connection may be established even if you were adversely affected months after your participation in protected activity. Facts used to establish the four legal requirements can also be used to demonstrate that the employer’s reason for taking the adverse action was neither credible nor the true determinative factor in making its decision. What could my employer do to deny my claim?Your employer must then present some legitimate, nondiscriminatory reason for making the decision that adversely affected you. A reorganization which required you to be transferred to another position or layoffs that caused you to lose your job because of your substandard qualification may suffice. What happens next? You must then present evidence establishing that the employer’s stated reason is an excuse to conceal retaliatory motives or that more likely than not a determinative factor for the adverse decision was retaliation. Evidence showing that you were qualified and that the employer misrepresented your employment records in order to establish his supposed legitimate reason may be sufficient to establish that the termination was in retaliation to your participation in protected activity. Keep in mind that the stated arguments are not exhaustive; consequently, there may be other ways by which you can establish the legal requirements and that the employer’s proffered reason for making the adverse decision against you is a cover-up for retaliation.
Legal Glossary
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