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Proving and Preventing Retaliation

Proving

To establish a retaliation case, an individual must show that:

• He/she engaged in a protected activity.
  
• He/she experienced an adverse employment action.
  
• A causal link existed between the protected activity and the adverse employment action.
  

After these basic elements are established (a “prima facie case”), the employer’s defense is to offer a legitimate reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, a presumption of retaliation no longer exists and the burden shifts to the employee to prove intentional retaliation. Using these standards, the California Supreme Court ruled that an employee who refuses to carry out an order he/she reasonably believes to be discriminatory is protected from retaliation even if he/she does not advise his/her employer of that belief.

In Yanowitz v. L’Oreal USA, Inc., a supervisory employee was instructed by her supervisor to fire an unattractive female sales employee and replace her with someone “hot.” Although she asked the manager to provide a justifiable reason to fire the employee, she never said that firing the saleswoman would be unlawful discrimination. When the supervisor did not comply with her manager’s instruction, her previously highly rated performance came under severe scrutiny and criticism. She eventually took a leave of absence for stress and never returned to work.

The California Supreme Court ruled that there need not be a specific complaint about unlawful discrimination. Her reasonable belief that her manager’s demands were discriminatory combined with the demand for a justifiable reason to fire the employee was sufficient notice to her manager. The heightened scrutiny of the employee’s performance accompanied by both public and private criticism materially altered her employment conditions, which created employer liability for the altered work environment. The California Supreme Court also said that the court could consider all retaliatory acts, including those that occurred too long ago to be independently litigated, if they were part of an ongoing pattern of related conduct.

Proving Retaliation With Circumstantial Evidence: There is no requirement that specific, direct evidence conclusively proves that an employee was fired for filing a sexual harassment complaint against his/her boss. Circumstantial evidence, a series of events or actions taken together, can sufficiently establish employer liability in a claim for retaliatory discharge. If an employee files a harassment complaint and is demoted or terminated soon afterward, a reasonable person would infer retaliation against the employee for exercising his/her legally protected rights. Courts will look at all of the facts surrounding the employee’s termination or demotion, including performance reviews and the company’s response to the complaint, to determine if the employer acted unlawfully.

Example of Retaliatory Conduct: A California Court of Appeal applied the federal “deterrence” test as means of identifying retaliatory conduct (see for a definition of “deterrence” test). In Taylor v. City of Los Angeles Dept. of Water and Power, an employee served as a supporting and material witness in an Equal Employment Opportunity (EEO) complaint against his employer. The court found that the employer retaliated against Taylor by demoting him and taking away opportunities for advancement. The court also found that the employer and supervisor’s behavior would deter other employees from complaining or assisting in enforcement of discrimination and retaliation protections. 

Calling Police About Potentially Violent Ex-Employee Not Retaliation: An ex-employee alleged that his former employer retaliated against him by calling the police when the employee sat outside the plant entrance. The employer did not engage in illegal retaliation under federal employment discrimination laws, according to a decision of the Seventh Circuit Court of Appeals. This case illustrates the difficult tightrope employers must walk between complying with discrimination laws and providing for the safety of employees and customers.

Preventing

An employee who thinks he/she was discriminated against has the right to bring up the matter with a supervisor, other persons in management or a government agency.​​

Any retaliation for making a complaint is strictly illegal, whether the retaliation is obvious (such as discharging the complaining person) or subtle (such as denying a merit increase for being “uncooperative”).

Do not view a complaint as a sign of disloyalty. Take complaints seriously and investigate them objectively. Although some discrimination complaints are insincere and harassing, the majority are sincere complaints of perceived mistreatment.​​

Retaliation at work can sometimes take subtle forms. Make sure you train managers on the scope of whistleblower protections. Measures which may help prevent retaliation in the workplace include:

Educate employees, especially supervisors, on what constitutes retaliation and the company’s policy against it.

Watch out for the subtle signs of retaliation against an employee, such as ignoring, isolating or undermining the employee, or changing expectations relating to the employee’s performance.

Implement effective complaint procedures that prohibit retaliation.

Limit the sharing of information regarding employee complaints to those who have a legitimate business need to know the information. Let those employees know that any retaliatory conduct taken against the complaining employee is prohibited.

Gather, rely on and document objective facts when making hiring and other employment decisions.

Carefully review discipline and termination decisions that involve individuals who participated in a complaint of unlawful workplace conduct. Consult legal counsel if necessary.