Employees have a right to report harassment or discrimination in the workplace without the threat of retaliation. Still, far too many employers take adverse action – whether subtle or overt – against employees who assert their legal rights. In fact, the Equal Employment Opportunity Commission has received an uptick in retaliation complaints in recent years. These claims accounted for 53.8% of EEOC complaints in 2019, with nearly 40,000 employees alleging retaliation.
To succeed in a retaliation claim, employees must establish that the adverse employment action happened because they engaged in a “protected activity.” In plain language, that means they asserted their employment rights – for example, by reporting sexual harassment, discrimination or other misconduct – and then paid the price. Without this cause-and-effect relationship, the adverse employment action doesn’t amount to retaliation.
Three key questions can help determine whether there is a sufficient causal link:
- Does the timeline make sense?
The timeline of events can show that the adverse employment action was, in fact, retaliation rather than mere coincidence. If an employee was first demoted and then reported sexual harassment, for example, that demotion could not have been retaliation for an event that hadn’t yet happened.
Keep in mind that retaliation doesn’t always happen immediately. It may be delayed (although a lengthy gap makes retaliation harder to prove). Additionally, employees frequently continue to experience it long after the triggering event.
- Was the employer or manager aware of the employee’s protected activity?
Timing alone isn’t enough. Employees must prove that the adverse employment action happened because they reported misconduct (or engaged in some other protected activity). The employer or manager must have known about the employee’s protected activity. Without that knowledge, the employment decision could not have been motivated by a desire to retaliate.
- Were there legitimate grounds for the adverse employment action?
Employers usually try to legitimize retaliation by coming up with other reasons for the adverse employment action. They may craft sham rationales to cover their tracks. Uncovering a retaliatory motive often requires digging deeper.
Even if a legitimate, non-retaliatory justification exists, the action might still be considered retaliation if it wouldn’t have happened but for the employee’s protected activity. This “but-for” causation is the crux of the matter, and it takes a talented and experienced employment attorney to prove it.