What are the elements of a retaliation claim?

On Behalf of | Feb 23, 2022 | retaliation

Sometimes it can be hard to do what you know is right, especially if you fear you will suffer unfair consequences as a result. For example, you may have witnessed your employer do something illegal or immoral. You know you should report them, but you may fear losing your job if you do. It is important to know that this is considered retaliation and it is against the law.

What is retaliation?

Retaliation is an adverse employment action brought against a worker because the worker participated in an investigation, grievance proceeding or a hearing regarding a wrong done by their employer. This means that an employee cannot be demoted, fired, overlooked for promotions or paid less simply because they were a “whistleblower.”

Elements in a retaliation claim

There are three elements that must be present to succeed in a retaliation claim. The first is the existence of protected activity. Opposing unlawful practices is a protected activity. For example, employees have the protected right to file a charge, testify or in any other way participate in an investigation, proceeding, hearing or lawsuit against their employer.

The second element that must be present to succeed in a retaliation claim is an adverse action. This is treatment or acts that a reasonable employee would find to be “materially adverse.” Some examples of adverse actions include demotions, suspensions and firing an employee. Threats, reprimands and harassment also can rise to the level of being an adverse action.

The third element that must be present to succeed in a retaliation claim is a causal connection. This means that the employer’s adverse action was a direct reaction to the worker participating in a protected activity.

Know your rights

Most of the time our employers do the right thing. There are some occasions, however, when an employer engages in unethical or unlawful activities that should be reported. If you find yourself in a position where you reported your employer’s unethical or unlawful activities and you believe you have been retaliated against as a result you will want to take the steps necessary to protect your rights.

 

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