“How can I prove I’ve been retaliated against?”

Question: Alan, I filed a discrimination complaint against my employer with the Equal Employment Opportunity Commission (“EEOC”). Two weeks later, I was told “We are going to monitor your work performance now.” Though I never received a negative employment review, two months later, I was demoted. Then, a year later, I was fired for poor performance.

A friend of mine was treated this way also after she filed a complaint of harassment. I have proof of what was said to me about my work performance “going to be monitored.” Will this be enough to prove that what happened to me was retaliation?

M
Scotch Plains, New Jersey

Answer: Dear M: What happened to you sure sounds like retaliation. However, “sounds like” is not enough. More is required to  establish that retaliation took place. Here are my thoughts:        

1. To “prove” that retaliation took place, you need to establish that, in what happened to you, there can be found the three necessary elements of retaliation. To establish any legal claim, there are certain things that need to be proven. They are what lawyers and judges call “the elements” of the violation. To prove retaliation took place, the first thing you need to prove is that you engaged in an activity that is “protected” by law. In your case, that is easily proven, as your filing a claim with the EEOC is such a “protected” activity. The second thing that you need to establish for a retaliation claim is that you suffered a “negative employment action.” In your case, that is easily proven, as you were both demoted and fired, both of which are “negative employment actions.” The third element that needs to be proven is called “causal connection.”    

2. Of the three things you need to prove, the hardest one to prove is “causal connection.” “Causal connection” means that (a) your filing a claim of discrimination with the EEOC was the thing that “caused” (b) your demotion and firing. Of the three elements of retaliation that must be proven, this is the hardest one of the three, as it is “in the heart” of the employer. However, we can “prove” what was “in the heart of the employer” by a variety of facts, events and circumstances.  

3. Here are ten common things that are often used to lead to a conclusion that a “causal connection” was present that tied together (a) a discrimination claim and (b) a “negative employment action”: (1) closeness in time between the “protected activity” and the “negative employment action”; (2) if it was the same people who you complained about who were the ones who demoted and fired you; (3) your employer giving a false or incredible reason for your demotion or firing; (4) if you were demoted or fired for things that other people have done and have not been demoted or fired, that is, different treatment; (5) if your work performance or conduct was given scrutiny greater than your colleagues’ work performance or conduct was given; (6) if you were demoted or fired in violation of existing company policies or procedures; (7)  if efforts were made to confuse, obfuscate or cover up what really took place; (8) if one or more people involved in your demotion or firing admitted their motives to you or others; (9) if you were demoted or fired for mere trivial reasons; and (10) if it can be shown your employer has had a history of illegal retaliation. There are many, many others.

Note that these things do not “prove” retaliation, but they are strong indicators of retaliation, and when you can show that a few of them have taken place in your facts and circumstances, it is very convincing to others that retaliation was, in fact, “in your employer’s heart.” That is as close to “proving” as you can get, without an outright admission by your employer, which is as rare as a hen’s tooth.    

4. If and when you do establish a “basic” case (lawyers call it a “prima facie” case) of retaliation, then the employer might be able to defend itself if it can prove “good business reason.” For example, you might present a very compelling case of illegal retaliation, only to have your employer come up with a very good reason for, let’s say, your firing: it believes you stole money from a cash register. If that was true, and could be proven to be true, or likely so, then any claim you might have of illegal retaliation would surely and swiftly go “down the drain.” Sometimes, unfortunately, both “sides” have pretty convincing sets of facts, events and circumstances, and it can be hard to know who to believe.  

5. If you think you have even a few reasons to believe retaliation took place, I strongly suggest you file a second complaint with the EEOC and/or with the state discrimination agency in the state you worked, this one for retaliation, which is a more serious violation of law than the initial discrimination. In my experience, no “case” is perfect; each has its imperfections, its doubts, its weak points. If you believe that there is any real chance of convincing, say, your next door neighbor that what happened to you was the result of illegal retaliation, then I suggest you file a new complaint with the EEOC and/or with the state discrimination agency in the state you worked, of illegal retaliation. First, when the matter is investigated, more information may come out that might help prove your case. Second, many employers simply settle such matters when they see employees are serious about getting justice. Third, many people – perhaps most – suspect most employers of engaging in illegal retaliation. In fact, many jury members will admit that “employers are probably guilty” even before hearing a case, based on their own experiences.

Retaliation for exercising your legal rights is an awful thing, because what good are legal rights if people are afraid to exercise them? It is my hope that you will consider very seriously filing a retaliation claim, and that you will persevere in following it up.                                                                                                      

 My Very Best,
Al Sklover

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2012 Alan L. Sklover, All Rights Reserved.