If your employer takes negative action against you for reporting discrimination or harassment, you may have a retaliation case against your employer. If you've experienced worse working conditions or treatment since you've made a complaint, you should speak to a lawyer about protecting your rights. This article discusses how an employment lawyer evaluates a retaliation case and what evidence you need to support your claim. For information about retaliation in general, see Workplace Retaliation: What Are Your Rights?
An employer illegally retaliates against an employee by taking an adverse action against the employee for reporting or complaining about (called "protected activity") what the employee believes to be discrimination or harassment in the workplace. An employer's adverse action may take the form of disciplining or terminating the employee. It could also be some other action that harms the employee's mental or emotional state or negatively affects the employees' working conditions, such as a decrease in pay or less desirable job assignments.
An employee doesn't have to formally object to the perceived discrimination or harassment to engage in a protected activity; it's enough to raise the issue in any way that brings the matter to the attention of the employee's superiors. For example, even a casual comment to HR that you found your supervisor's comments racially discriminatory could qualify as protected activity.
An employment lawyer will examine several elements of your potential case to help determine whether or not to represent you, including the evidence of the retaliation, the harm it caused you, and how you'll be perceived by a judge or jury.
In order to prove retaliation, you will need evidence to show all of the following:
Retaliation is different from discrimination or harassment in that it doesn't matter if the underlying conduct that the employee complained about was actually discriminatory or harassment, as long as the employee had a good faith belief that it was. For example, an employee may see an encounter between a coworker and a supervisor that the employee honestly believes is an incident of harassment even though it was not. If the employee reports the incident and the employer disciplines or fires the employee in response, the employee nevertheless has a retaliation case.
This is why it's important to show an employment lawyer evidence that you honestly and in good faith believed that you witnessed or experienced discrimination or harassment. Bring the lawyer any documents, copies of offensive visuals or messages, and the names and contact information for witnesses who can back you up.
You should also bring evidence that you actually made a complaint or report of harassment or discrimination to your employer, including any emails, letters, memos, or even personal notes. Remember to give the lawyer the name and title of the person to whom you reported the complaint and the names of any individuals who witnessed your complaint.
In a retaliation lawsuit, you are almost always suing for an award of money called "damages." To recover damages, you must be able to show that you suffered an actual loss. An employment lawyer who is evaluating your potential case needs to know what losses you have suffered as a result of the retaliation, such as lost wages or benefits.
Bring in your pay stubs, W-2 forms, or other documents that show your earnings prior to the retaliation. If you have related losses, such as medical expenses that would have been covered by health care benefits you previously had, bring in documents that show those losses. And, if you have employee benefit plans or policies for employee benefits (medical and dental insurance, pension plan, stock option plan, and the like) you had prior to the retaliation, show those to the lawyer too.
As the plaintiff in a lawsuit, you are your most important witness. An employment lawyer will be evaluating you as a potential witness from the moment you walk into his or her office. This is because a judge and jury will evaluate you in the same way when deciding whether or not to believe your testimony or give you a damages award. Show the lawyer that you'll be a credible, coherent, and sympathetic witness on your own behalf. You can do this with a presentable appearance, organized and clear statements, a calm demeanor, and your sincerity.