Retaliation for Reporting or Complaining About Discrimination or Harassment - What Does an Employee Need to Show?

It is illegal for an employer to retaliate against an employee for reporting or complaining about unlawful discrimination or harassment.

It is also illegal for an employer to retaliate against an employee for participating, testifying, or assisting in a proceeding, hearing, or trial regarding a charge of unlawful discrimination or harassment.

To state a claim for retaliation, an employee must show:

  1. He/she engaged in a protected activity;

  2. He/she was subjected to an adverse employment action; and

  3. A causal connection between the employee's protected activity and the adverse employment action the employee suffered.

What is a protected activity?

An employee engages in protected activity when the employee:

  1. Reports or complains to their employer about what they believe to be unlawful discrimination or harassment; or

  2. Participates, testifies, or assists in a proceeding, hearing, or trial regarding a charge of discrimination or harassment.

Note: An employee does not need to be certain that the conduct they are reporting or complaining about is illegal. An employee is protected from retaliation if they have a reasonable, good faith belief that what they are reporting or complaining about is unlawful discrimination or harassment.

What is an Adverse Employment Action?

An adverse employment action is the retaliatory conduct that is taken against an employee and occurs when an employee suffers a material, negative change to the terms, conditions, or privileges of their employment.

Examples:

An employee complains about what she believes to be unlawful age harassment. One week later, the employee's employment is terminated.

An employee testifies in his co-worker's race discrimination trial against their employer. Two days later, the employee receives written discipline. Three weeks thereafter, the employee is demoted and transferred to the night shift.

An employee reports age harassment to his manager. On the next work schedule, the employee's hours are reduced. The following week, for the first time in his employment with the company, the employee is issued a written performance warning. Two weeks later, the employee is fired.

Note: An adverse employment action can be a single retaliatory action or can be a series of separate retaliatory actions.

What is a Causal Connection?

A causal connection is a direct link between the employee's engagement in a protected activity, i.e. reporting illegal discrimination, and the adverse employment action that the employee is subjected to, i.e. an employee's demotion.

A causal link can be shown through circumstantial evidence. This can be done by offering evidence that the employer knew that the employee complained or reported unlawful discrimination or harassment and that the employee was then subjected to an adverse employment action.

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