Labor and Employment

Proving Retaliatory Discharge under Federal Law

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Retaliation simply means revenge - getting back at someone. In the workplace, this refers to your employer punishing you in some way for reporting unlawful conduct. Sometimes you may feel you're being discriminated against or that you aren't receiving equal pay for your work. Or you may believe your employer is doing something illegal. If you're fired after complaining, you might have a case of retaliatory discharge.

Protection from Employer Retaliation under Federal Law

There are many federal laws that protect you from retaliation by your employer. These include Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Equal Pay Act, and the Fair Labor Standards Act. However, these laws are effective only if you can bring your concerns to your superiors without fear of some sort of backlash. You might be afraid to speak out because you're afraid of retaliation, including losing your job, if these laws didn't exist.

Who Is Protected?

Under current federal law, both current and former employees are protected from employer revenge. Also, you don't need to prove that you were treated differently because of your race, religion, sex, national origin, age or disability. You also don't need to be a member of a protected group to claim retaliation, such as being fired after complaining of age discrimination against another employee.

What Is Protected Activity?

There are two types of "protected activities." One is when you disagree with the actions of your employer and you believe they are unlawful under a federal law, such as employment discrimination or wage issue. Your belief must be in good faith to be reasonable. Examples can include refusing to obey an order you believe is unlawful, lodging an internal complaint or simply complaining that you feel you are being discriminated against.

The other type of protected activity is when you participate in an investigation, hearing, or lawsuit about possible illegal practices by your employer. Your participation is protected no matter if the underlying claim of discrimination or illegal conduct is valid. This activity also doesn't require you to have a reasonable belief that the charge of discrimination is valid.

Elements of a Claim

You must prove three things when establishing a valid claim of being fired from your job because of retaliation:

  • You opposed your employer's discrimination or participated in covered proceedings under a federal law (known as protected activity)
  • You were fired or punished in some other way, and
  • There is a relationship between the protected activity and your firing

Some courts also require that you prove that your employer was aware of your protected activity before firing you.

Connection between Protected Activity and Firing

You must also prove that you were fired because you engaged in a protected activity. This can be done either through direct or circumstantial evidence. Direct evidence is a written or verbal statement that you were fired because you complained that your employer didn't pay women as much as men for the same work.

Circumstantial evidence is if the discharge occurred soon after you made that complaint, or your employer's stated reasons for firing you change over time or doesn't seem believable. Therefore, if your employer fires you after you've engaged in a protected activity, they must be very careful and have full records for a valid reason to fire you.

What the Employer Must Prove

Once you've started a retaliatory discharge claim, the only way your employer can escape responsibility is to show a genuine reason to fire you. Simply put, the employer must show you would've been fired even if you hadn't participated in the protected activity.

Examples of acceptable reasons include poor performance, high absence rate or discipline abuses. If your employer can prove a real reason for firing you, it would be more difficult to prove that retaliation is a reason for losing your job.

Wrongful Termination

A retaliatory discharge is a form of wrongful termination. Under several federal laws, it's illegal for your employer to fire you for exercising your rights, such as filing a discrimination claim, or for testifying against your employer's possibly illegal practices. However, proving retaliation is not a walk in the park.

You must prove you engaged in a protected activity, and that activity resulted in you being fired. If your employer can prove a legitimate reason for firing you, then you must prove that reason was an excuse.

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