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How to Prove Retaliation in the Workplace | Labor and Employment Attorney

Tarun Sridharan Legal Editor & Attorney Contributor Read Time: 5 minutes

How to Prove Retaliation in the Workplace | Labor and Employment Attorney

In the American workplace, you have a right to complain about unlawful or illegal activity, without dealing with retaliation in the workplace from your boss. Unlawful or illegal activities include: harassment and discrimination. 

That’s right. Your employer cannot do anything about it. If they try to punish you for it, then you can sue pursuant to a “retaliation” claim. If your employer chooses to take action against you for reporting harassment, mistreatment, discrimination, or the like, you could have a retaliation case on your hands. These claims can be complicated and confusing, so you should consult a lawyer to discuss your legal options. An  experienced employment lawyer can help evaluate a retaliation case and assist you in documenting and providing evidence to support your claim.

Topics and questions this article will help you to answer:

What is workplace retaliation | What makes a strong retaliation case | Evidence to support your claim | Documentation needed to defend retaliation claims | Signs of retaliation at work | How to document retaliation at work | Find an Employment Lawyer to Help in a Retaliation Claim

What is Workplace Retaliation?

Retaliation in the workplace is defined as an employer that takes adverse actions against an employee, because the employee reported an incident, served as a witness, or participated in an investigation about an unlawful employment practice. An example of adverse actions against an employee is when a boss punishes a worker.

For a retaliation claim, three essential elements exist: 

  1. Protected Activity
  2. Adverse Action
  3. Causal Connection

Protected Activity

Filing or participating in the complaint process.  

Adverse action

Includes promotion denial, reduction in benefits or pay, threats, and harassment. 

Causal Connection

Evidence an employer took an action against the employee who reported the incident.

What Makes a Strong Retaliation Case?

In order to succeed in proving retaliation, you’ll have to prove the following: 

  • You experienced harassment or discrimination  
  • You reported the unlawful behavior to HR  
  • Your employer engaged in an adverse employment action as a result 

Whether your original claim of harassment or discrimination was “true” is irrelevant. All that matters for retaliation is that your employer punished you for complaining or reporting those problems.

Putting together a strong case requires documentation needed to defend retaliation claims, including:

  • What occurred
  • When it happened
  • How long it’s been going on
  • Who was involved, and
  • The outcome

Evidence that Matters in a Workplace Retaliation Case

The evidence you can provide in a workplace retaliation case is key to advancing your legal claim. To help substantiate the claim, you will need as many documents as possible. They will also help to connect the dots for your lawyer, and for the opposing side, too.

Evidence varies, but to help support your workplace retaliation case, consider the following:

  • Emails 
  • Voicemails 
  • Text messages 
  • Witness corroboration  
  • Notes and letters 
  • Recorded conversations

When it comes to recordings, be careful. In some jurisdictions, it is illegal to record people without their consent. You’ll want to consult your attorney about what evidence you can use, and what evidence will have to be “thrown out.”

What Retaliatory Behavior Looks Like

There are many different ways in which an employer can retaliate against an employee. Some of the signs of retaliation at work are: 

  • Harassment 
  • Racism 
  • Discrimination  
  • Demotion  
  • Reduction in hours or benefits  
  • Threats  
  • Exclusion or being left out  
  • Bullying  
  • Passed over for a promotion or raise  
  • Reassignment to a different department  
  • Pay cuts  
  • Being fired 

Some workplace environments can be toxic, which pushes employees to take outside legal action. This is especially important if the employee faced retaliatory action for reporting unlawful behavior. Post retaliation, the employee should speak to a lawyer who can evaluate their case and guide them on next steps.

How to Document Retaliation at Work

To gather evidence to create a strong workplace retaliation case, follow the steps below: 

  1. Be certain you have documented the incident with your attorney.
  2. Keep a record of everything.

Be Certain You Have Documented the Incident with Your Labor Law and Employment Attorney

Though your attorney can help with this process, make sure you have reported the issue to your employer and to the HR department. For example, you can file a complaint, send an email to HR, or involve a third party. Anything that will help to prove your case will be useful here. Make sure your employer is aware of the situation. Include them in emails, send them a copy of the report you are filing, and confirm that you have proof that retaliatory action was taken.   

Keep a Record of Everything

At some point, you may not have access to your work-issued laptop or other equipment. As such, it is useful to save a copy, digital or physical. Do be careful about recording anyone without their consent, as many states have laws against doing so.  

HR departments have a responsibility to avoid unlawful behavior. That being said, if your claim goes unresolved, an employment lawyer can get you the legal assistance you need. An employee discrimination lawyer understands the repercussions of retaliation and can make sure the behavior and activity no longer persists.   

Find an Employment Lawyer to Help in a Retaliation Claim 

If you believe that you’ve been retaliated against by your employer, then it’s a good idea to contact an experienced employment lawyer who can handle your case. We encourage you to get started as soon as possible. 

Contact 1-800-THE-LAW2 today for a free and confidential consultation. We’ll get you connected to an attorney in just 10 minutes or less. 

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