What is Retaliation?

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What is Retaliation?

Retaliation is defined as “harming someone because they have harmed you” or, simply put, revenge. In employment, the term retaliation is used to mean “adverse employment action” against an employee who has engaged in “protected conduct.”

In order to establish a prima facie case of retaliation, an employee must show each of the following:

  1. that the employee engaged in a protected activity;
  2. that the defendant subjected the employee to an adverse employment action; and
  3. that there is a causal link between the two.

Victims of workplace retaliation are entitled to damages, including (1) economic damages like lost pay or lost benefits; (2) non-economic damages like emotional distress, pain and suffering, and reputational damage; (3) attorneys’ fees; and (4) punitive damages, which are awarded to punish the offending party.

Protected Activity: “Protected activity” is a very broad term, but generally means a good-faith report of unlawful or illegal activity. Some examples of “protected activity” include:

  • reporting unsafe working conditions;
  • reporting illegal activity or violations of the law;
  • refusing to participate in illegal activity;
  • reporting discrimination or harassment in the workplace;
  • reporting sexual harassment;
  • requesting medical leave;
  • requesting reasonable accommodations for a disability; or
  • cooperating in a workplace investigation

Adverse Employment Action: An “adverse employment action” is any action which materially and adversely affects the terms, conditions or privileges of your employment. This includes actions which impair your job performance or prospects for advancement or promotion. Some examples of adverse employment actions include suspensions, termination, demotion, reduction of hours or pay, or specious disciplinary actions.

Causal Connection: Because employers will rarely admit that they took adverse action because employees engaged in protected activity, proving a causal connection is generally the most difficult element to prove. This connection can be proven through direct or circumstantial evidence, such as:

  • a short time between the protected conduct and the adverse action (ex. fired the day after reporting sexual harassment);
  • lack of an investigation into the employee’s complaint;
  • unequal and more favorable treatment of employees who do not complain;
  • a campaign of harassment directed at the complaining party;
  • verbal or written statements demonstrating a retaliatory motive;
  • hostility towards other complaining employees; or
  • a pretextual explanation for the employer’s adverse action.

California law prohibits retaliation against employees who make a good faith report of discrimination, harassment, unsafe working conditions, unpaid wages, or illegal activities to their employers. In fact, employers have a legal obligation to investigate these complaints and to take appropriate steps to stop retaliation from occurring.

If you were fired because you reported discrimination or harassment, blew the whistle on illegal activities, reported unsafe working conditions, or refused to participate in illegal activities, you may have a claim against your employer for retaliation or wrongful termination.

Reach out today and set up a free consultation with Jeannette Vaccaro at (415) 444-5800, or on our website.

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