If your employer retaliates against you because you filed a discrimination charge or because you participated in a hearing, your employer’s adverse job action against you is illegal. Employers in New Jersey and Pennsylvania are prohibited from retaliating against employees because they have exercised their rights.
The Equal Employment Opportunity Commission is the federal agency that is tasked with enforcing the anti-discrimination laws of the federal government. It reports that retaliation is the most common type of discrimination charge that is filed in federal cases. Retaliation is quite common, unfortunately. If you have been unlawfully retaliated against by your employer, the attorneys at Swartz Swidler might be able to help you to prove your case. Here is what you should know about how to respond to unlawful retaliation and how you might be able to prove your case.
Three things that you must be able to prove
For a retaliation claim, you must be able to prove that the following things occurred:
- You either engaged in a protected activity or witnessed harassment or discrimination and reported it;
- Your employer reacted with an adverse employment action such as firing you, demoting you, denying a promotion, or another adverse action; and
- The adverse action by your employer was linked to your protected activity.
Protected activities include participating in discrimination hearings as well as complaining about unlawful harassment or discrimination. A protected activity can also include a request for reasonable accommodations by a disabled employee.
You cannot be retaliated against for telling your employer that the company is discriminating against either you or another worker. This could include a threat to file a formal discrimination charge or refusing to follow the requests of an employer because the employee believes that they are discriminatory.
You also cannot be retaliated against for participating in a proceeding about employment discrimination. Your employer cannot retaliate against you because testified as a witness or cooperated with the investigation.
What evidence will you need?
In order to prove that the previously described actions happened and were linked to each other, you will need to gather evidence. Employers rarely admit to retaliation, and it can be hard to find evidence that the retaliation against you was intentional. Most retaliation cases rely on circumstantial evidence because direct evidence may not be available. The more circumstantial evidence that you are able to gather, the likelier you will prevail in your retaliation claim. This could include gathering performance evaluations that demonstrate you received good reviews until you engaged in the protected activity, emails or text messages that indicate that your employer’s actions were retaliatory in nature, a pattern of similar adverse actions by your employer against other workers who have complained, and others. Your lawyer can help you to understand the types of evidence that might be needed in your case.
But for causation
The most difficult part of a retaliation case is proving the element of causation. Employees are required to prove but for causation for retaliation claims. This means that you will have the burden of proving that the adverse job action would not have occurred if you had not engaged in the protected activity. In many cases, employers claim that they had other reasons for taking adverse employment actions such as downsizing or poor job performance.
If you are able to prove that you have engaged in a protected activity and subsequently suffered an adverse employment action, it will not be enough to win your claim unless you are also able to prove that the actions were causally connected to each other. It may be easier to prove this causal connection if the adverse job action occurred very soon after the protected activity.
What can you do if you are being retaliated against by your employer?
If you believe that your employer is engaging in unlawful retaliation against you, you should keep a thorough record of everything. Write down each negative action that occurs with its date and time. You should also keep all written evidence, and take notes of any verbal remarks that may relate to your case. Even if you think a detail is unimportant, you should still write it down with its date and time. If any other employees have witnessed anything, write down their names and contact information.
Get copies of the performance evaluations from your personnel file. You should also tell your employer about your concerns. Make certain that you have written evidence that you have brought up your concerns such as an email or a memo.
You should consult with an experienced employment law attorney. When you set up a meeting with an attorney, you can talk about the details of what has happened. The attorney may tell you whether your claim is strong and the next steps that you might take. Your attorney will be honest about the worth of your case or if you will be unable to prove causation.
When you arrive for your consultation, it is important that you bring all of the evidence that you have gathered with you. This can help your attorney to analyze your claim so that he or she can give you a better idea of whether you might have valid grounds to file a retaliation claim.
Swartz Swidler focuses on employment law cases and helps people to fight against retaliation. Our experienced attorneys are able to help you to understand the different aspects of the law as they might apply to your potential claim. They can also talk to you about how you might be able to prove that retaliation has occurred at your workplace. If you decide to move forward with your claim, and we agree to accept representation, we will fight for your rights to try to secure damages so that you can be compensated for the harms that you have suffered. Contact Swartz Swidler today to schedule a consultation and to learn more about the rights that you might have.