“How can I prove retaliation has occurred?”

Question: My employer has a policy against retaliation for objecting to impropriety, dishonesty or illegality. I objected to one of them by filing a grievance, and then one month later I was chosen for a layoff for supposedly financial reasons.

How do I prove this is retaliation?

Larry
Milton, Washington

Answer: Dear Larry, Your question is an absolutely great one, because it comes up all the time, and is the subject of many, many court decisions. Let me explain:  

1. There are three parts to establish when proving illegal or improper retaliation. As a general matter, the law says that to prove retaliation we need to show (i) First, the employee was engaged in a “protected activity,” such as your objecting to impropriety, dishonesty or illegality; (ii) Second, the employee must show that he or she suffered a “negative employment action,” such as losing your job; (iii) Third – and here’s the tough part – the employee must show a “causal connection” exists between (i) the protected activity, and (ii) the negative employment action. Those are the three “elements of proof” of an illegal or improper retaliation.

2. The problem is this: any motive (including a retaliatory one) is in the mind or heart. Why people do things is something that exists in their minds or their hearts, and is not “written on their foreheads.” Frankly, people often don’t even know, themselves, exactly why they have done things.

I often say to prove what is “between the ears” we should look at (a) what has come out of their mouths, or (b) what they have written with their fingers, or (c) what other actions they have taken. So, if someone said, “I will fire Sue because she filed a complaint,” or wrote that in an email, or claimed Sue did not sell 100 homes in one day, while that has never been accomplished once in the whole history of the company, then we have some proof of retaliatory motive.

3. So, to prove retaliatory motive we need to show things (a) said, (b) written, or (c) actions taken, and Courts have recognized many. Here are some “indicia of retaliatory motive” that Courts have accepted: (i) temporal proximity, meaning that the firing was close in time to the report of illegality, such as ten minutes after; (ii) retaliatory motive expressed in words spoken or in emails or documents written; (iii) frequent discipline against the employee for plainly trivial matters; (iv) treatment of the employee different than treatment of other employees; (v) increased or inordinate scrutiny of the employee’s work; (vi) unwarranted criticism of the employee’s performance or behavior; (vii) the employer’s failure or refusal to use established investigative or disciplinary procedures; and/or (viii) the employer’s offering obviously false reasons for the negative employment action, what lawyers call “mere pretext.”

4. “Temporal proximity” is usually all that employees raise; most courts find it generally insufficient. In my experience, employees and their attorneys make the serious error of raising only “temporal proximity” to establish retaliatory motive. While it is sometimes accepted by courts as convincing, much more commonly it is found insufficient.

5. Because retaliation is so very common, we devote a great part of our blogsite to videos, articles and model letters to help you help yourself in this circumstance. We believe that people should not be afraid to stand up to retaliation.

To help people do just that, we offer a Model Letter to object to retaliation. To obtain a copy, simply [click here].

Our Resource Center also contains articles to read about retaliation, to review them [click here]. We also provide consultations for those who desire them. To learn more [click here].  

Larry, do consider standing up to what happened to you. Standing up to being treated wrongly is, in itself, a positive thing, which makes one feel better; being a victim is humiliating, depressing and disheartening. Standing up is the exact opposite: inspiring, invigorating and energizing. That is not only what I say: it is written all over history, and in the Bible, as well.

Thanks for writing in. As may be evident, I literally enjoy helping people stand up to the evil that is retaliation for doing what is right. And I’d love to see more people stand up in that way.

I hope and pray this helps you, and all others who read it.  

Best, Best, Best,
Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.