How do I Prove Retaliation in the Workplace?
Retaliation is defined as adverse action resulting from an individual's protected activity – complaining, essentially, about discrimination for your race, your sex, your gender, religion, national origin, disability, perceived disability, age, pregnancy, or sexual orientation discrimination. One of the ways in which you can prove that you've been retaliated against is if you can show that you were up for promotion and because of your complaint of discrimination, you were not considered anymore, or if your hours were cut, if you were transferred to a worse position than the one you initially had, or if you were terminated for complaining about discrimination.
Wrongful Termination Attorneys Representing Employees in New York City
Most laws in New York that protect employees' rights to be free from workplace discrimination and harassment include provisions prohibiting retaliation after making a complaint of discrimination. For example, your employer may not fire you or demote you for making a formal complaint or filing a claim of racial harassment or other forms of discrimination or sexual harassment. The New York City Human Rights Law (“NYCHRL”), the New York State Human Rights Law (“NYSHRL”) and Title VII protect employees against retaliation. However, in most cases, employers do not tell you that they are retaliating against you. Proving why your employer acted in a particular way may be challenging. You may be wondering how to prove retaliation in the workplace. The New York City retaliation lawyers at Phillips & Associates vigorously represent employees who face discrimination and retaliation. Watch the video on this page to learn more about retaliation claims.How Do I Prove Retaliation in the Workplace?
To be actionable, a retaliatory action must be materially adverse and likely to dissuade another worker from supporting a discrimination charge. Retaliation may include termination, harassment, or demotion, but it is not always economic or confined to the workplace. It simply needs to be an action that is punitive enough that a reasonable person would be less likely to file a complaint or charge about discrimination due to the employer's actions.
In order to establish retaliation, you will need to prove that you were engaged in a protected activity, and because of that your employer took an adverse action against you. The causal nexus between these two is crucial. You need to show that but for your engaging in a protected activity, the retaliatory action would not have happened. You should be prepared for your employer claiming that some other reason why you received an adverse employment decision (such as bad performance, lateness). Your employer may also say that you didn’t complain or you did complain but not about discrimination or sexual harassment. So if you are going to complain of discrimination or sexual harassment, do it in writing and keep a copy. Make sure to be specific about the discrimination you are experiencing and gather as much evidence as you can to support your claim.
Defining a protected activity is typically more straightforward. It includes any aspect of trying to fix or oppose discrimination in your workplace. For example, protected activity includes making a complaint of discrimination to your supervisor or human resources, suing your employer for failing to promote you based on your pregnancy, helping a coworker who is being sexually harassed, threatening to file a charge of racial discrimination, or giving evidence to an investigator about discriminatory conduct that you have witnessed against a disabled colleague.
Sometimes the causal nexus between your employer's retaliatory action and the reason for the retaliation may be exposed by looking at the timing. The court may look at the time frame between your suing your employer and the alleged retaliatory action. For example, if you are terminated within a week of complaining about sexual harassment to Human Resources, the casual nexus between your compliant and your termination leads to a strong inference of retaliation.
Additionally, if you are a “covered” employee working for a “covered” employer, you have the right to take a certain amount of medical leave under the Family and Medical Leave Act (FMLA). If you are terminated within a week of asking for time off or a week after your return, you may be able to make a strong case for retaliation.
You will also need to prove that the company for which you work knew about the protected conduct. For example, if you secretly provide information to an investigator for your coworker's discrimination claim, it may be difficult to prove that your employer knew this and therefore retaliated against you. Instead, you will need to conduct your protected activity in the open. Often, simply notifying your employer about the protected activity will ensure that the knowledge requirement is met. It is wise to do this with the help of an attorney.Consult an Experienced Retaliation Lawyer in New York City
If you suspect that your employer punished you for speaking out against discrimination or harassment, you may be wondering about your next steps. At Phillips & Associates, our New York City retaliation attorneys can evaluate your particular situation and provide vigorous legal representation as appropriate. Contact us at (212) 248-7431 or through our online form to set up a free appointment. We represent people who need a wrongful termination lawyer or assistance with other employment claims in Staten Island, the Bronx, Queens, Brooklyn, and Manhattan, Westchester, as well as Nassau and Suffolk Counties.
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