Your Civil Rights Are Precious

Why you must complain of discrimination if it occurs in the workplace

When an employee stands up and complains of discrimination, they engage in what anti-discrimination laws consider a protected activity. It need not even result in your termination - merely a change and conditions of employment that would dissuade a reasonable employee from making a complaint of discrimination. According to the U.S. Equal Employment Opportunity Commission, and in my own practice I see that an employee who reports unlawful behavior ending up on the receiving end of a denied promotion, verbal harassment; they could even be fired. Any of these retaliatory actions are prohibited can form the grounds for a lawsuit.

To prove retaliation, you had to have been engaged in a federally protected activity. Second, an employer needs to have enacted a retaliatory action against you - it need only be an action that would dissuade a complaint by a reasonable employee. Finally, a causal link between the retaliation and the employee's protected activity has to be be established. The closer in time the better; the more retaliatory acts the better.\

While an employee "but for" the protected activity she would not have been subject to retaliation - at least under federal law, if not the City Human Rights Law - the one benefit to a retaliation cause of action is that jurors understand retaliation. Retaliation is revenge. Employers like to be in charge and don't like it when an employee notes that it is doing something wrong. So if you feel you are being treated differently, if there is any way you can connect the treatment to discrimination based on a protected class - gender, race, sexual orientation, etc. - a mere complaint gives you greater power in court. Juries do understand discrimination, but discrimination is a dirty word. Retaliation is just getting back at someone, which people see all the time. Retaliation is a very jury-friendly cause of action.  

Proving that you were unjustly punished by an employer, however, can be the hardest part of proving a retaliation claim. For instance, a manager or supervisor may openly state that an employee was fired for participating in an OSHA investigation or for reporting a discriminatory act. However, the supervisor might choose to keep quiet about the reason for the firing. In this case, the employee can still claim the firing itself was unwarranted by pointing out that there was no logical reason to be fired.  

Challenging an act of retaliation may be difficult if the employer supplies reasons for a firing or a promotion denial that seem to have nothing to do with the employee's protected activities. The employer may claim the employee was not performing to the company's performance standards. An employer might also fire a worker on the grounds the worker was not arriving to the place of employment on time.

Anyone who feels their work performance is being maligned or falsely characterized could consult with an attorney to find viable options to contest the allegations. If the employer is falsifying records to make the employee look bad in employment attendance, the employee could counter with time cards or other records that disprove the allegation. A worker might also supply written reports that prove the employer initially approved of his or her performance.

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