How Do You Prove Retaliation in the Workplace?

Jan 03, 2018
By Peter Friedmann

How to Prove Retaliation in The Workplace?

U.S. and Ohio state laws prohibit employers from punishing or mistreating workers and job applicants for reporting or otherwise calling attention to problems ranging from discrimination and wage theft to fraud. Retaliation for filing a complaint can take many forms, but courts make it an employee’s responsibility to prove that an employer has acted illegally.

Partnering with a dedicated Columbus employment retaliation lawyer can help a worker or jobseeker put together a case, but doing that will be easier if the person knows what constitutes retaliation and what type of evidence will be needed. If you are personally experiencing retaliation or witnessing co-workers being retaliated against, consider calling The Friedmann Firm at 614.610.9755 to request a confidential appointment with an attorney who has handled many retaliation cases. You can also reach out online by completing this contact form.

Recognize Workplace Retaliation When It Happens

The federal Equal Employment Opportunity Commission (EEOC) has the primary responsibility of enforcing laws against workplace retaliation. The commission defines retaliation as any “materially adverse” action taken by an employer or its officers in response to a worker or job applicant who engages in a protected activity.

Protected activities include, but are not limited to,

  • Reporting discrimination based on race, sex, religion, or age;
  • Reporting violations of law, which is often called whistleblowing;
  • Requesting a reasonable accommodation for a temporary or permanent disability;
  • Asking about unequal pay for the same work;
  • Asking for unpaid overtime pay; and
  • Cooperating with the investigation into any of the alleged activities already listed.

The EEOC and courts that decide workplace retaliation cases involve many ways in which employers punish workers and try to discourage others from engaging in protected activities. Examples of workplace retaliation include

  • Firing;
  • Imposing a lengthy unpaid suspension;
  • Reassigning to a dirtier, more dangerous, or less-prestigious position;
  • Changing shifts to create hardships;
  • Denying professional development opportunities;
  • Refusing a promotion or withholding benefits;
  • Demoting;
  • Assessing penalties for actions that other employees do not get punished for;
  • Permitting or engaging in physical or verbal abuse;
  • Refusing to hire or call back from a layoff; or
  • Threatening to do any of the above.

Know What Constitutes Evidence of Workplace Retaliation

To side with the worker or job applicant in a workplace retaliation case, the EEOC and a court will want to see evidence of some or all of the following:

  • The employer failed to investigate the issue that gave rise to the protected activity,
  • The employer failed to investigate a complaint of retaliation,
  • Engaging in protected activity resulted in treatment other employees did not receive,
  • The retaliation occurred shortly after the protected activity or complaint about earlier retaliation, often defined as “temporal proximity,”
  • A pattern of retaliation exists, and/or
  • The employer offered bogus explanations for taking retaliatory actions or not conducting investigations.

Importantly, a good-faith and thorough investigation by the employer should include interviews with the person who made the report, the people accused of wrongdoing, and all witnesses. The investigation should also result in an official decision of whether action is required and what those actions will be.

When an employee or job applicant suspects he or she is the victim of workplace retaliation, that person should keep notes on discussions with managers and supervisors, save all emails and phone messages related to the possible case, and ask co-workers if they will be willing to testify in support. Collaborating with a Columbus employment law attorney will help the person understand what types of documentation to create and keep.