By Darren M. Sharp |
When employers fire their employees, they don’t simultaneously circulate a memo to the team explaining that what prompted the termination was the employee’s recent whistleblower report or complaint of discrimination. Instead, employers point to claimed rule violations or attitude problems, or let the employee know that things just weren’t “working out.” In this reality, how do former employees prove that they were subjected to illegal retaliation? It is not as difficult as it may seem. Though there is little statutory guidance on how to prove retaliation, over the years, the courts have recognized dozens of methods of proof. Here, I describe some of the most common.
First, a plaintiff can show retaliation based on the timing of the employer’s retaliatory conduct in relation to when the employer made a protected report of the employer’s illegal or discriminatory conduct. The closer the retaliatory conduct to the protected report/complaint, the more apparent the retaliatory motive.
Second, an employer’s violation of its own disciplinary policies can be used to prove retaliation. For example, if the employer has a progressive discipline policy but fails to follow it, this can help prove that the employer’s action was retaliatory.
Third, how an employer treats its other workers in comparison to how it treats an employee who has raised a protected complaint of illegal activity or discrimination can also be telling. To provide context, consider two employees who show up late for work. Does the employer respond the same way to both the employee who reported discrimination and the employee who didn’t? Has the employer applied its policies more leniently to the employees who did not complain? Comparing the employer’s treatment of similarly situated employees can be an incredibly effective tool for proving retaliation.
Fourth, when an employer changes how it responds to the same performance or conduct after receiving a protected report, this can be evidence of retaliation. For example, if taking a 35-minute lunch break had been acceptable for the year leading up to the report of illegal conduct and the employer all of a sudden disciplines the employee for taking a 35-minute lunch break following the protected report, this change can help establish a retaliatory motive.
Fifth, an employer’s termination of an employee for alleged performance reasons following a recent strong performance review can provide strong evidence that termination was in retaliation for the employee’s protected report of illegal behavior. Logically, if an employee was performing at or above the expectations of the employer leading up to the employee’s report, the employer’s sudden dissatisfaction with that employee’s performance creates real questions for the employer and compelling evidence of retaliation for the employee.
Finally, any negative remarks the employer’s leadership or management team make regarding the protected conduct should be a central focus. Sometimes nothing tells the truth more than the employer’s inability to refrain from openly criticizing the employee for reporting discrimination or other illegal conduct. Evidence of such criticism certainly provides strong support for the employee’s retaliation claim.
If you believe you’ve been retaliated against, contact us and we would be happy to discuss the situation and analyze how to potentially prove your retaliation case.
Darren M. Sharp is a senior attorney at Schaefer Halleen, LLC, where he represents clients primarily in employment law, condominium law, and other litigation.