Switch to ADA Accessible Theme
1111 NE 25th Ave., Suite 501
Ocala, Florida 34470
James P. Tarquin, P.A Call for a FREE Consultation!352-401-7671
We Fight For Victims Of Retaliation
The Employee's Voice And Advocate

Citrus County, FL Retaliation Lawyers Serving Central Florida Employees

Workplace Retaliation Q & A

Q: Does federal employment discrimination law protect employees from retaliation?

A: Yes. In order to protect employee rights, the federal employment discrimination laws contain anti-retaliation provisions. The federal employment discrimination laws that contain an anti-retaliation provision include Title VII of the Civil Rights of 1964, the Pregnancy Discrimination Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. Federal employment discrimination law protects two types of employee activity from retaliation: (1) opposition to an unlawful discriminatory employment practice; and (2) participation in an investigation or proceeding alleging employment discrimination. When an employee engages in either activity, the employee is deemed to have engaged in statutorily protected activity under federal employment discrimination law and is protected from retaliation.

back to top

Q: Why does federal employment discrimination law protect employees from retaliation?

A: The federal employment discrimination laws contain anti-retaliation provisions because, as the U.S. Supreme Court observed in Crawford v. Metropolitan Gov. of Nashville & Davidson County, 555 U.S. 217 (2009), “fear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.” In prohibiting retaliation, as the Supreme Court in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) explained, the anti-retaliation provisions of federal employment discrimination law prevent “an employer from interfering with an employee’s efforts to secure or advance enforcement of the [ ] basic guarantees” afforded by federal employment discrimination law.

back to top

Q: Does Florida employment discrimination law protect employees from retaliation?

A: Yes. The Florida Civil Rights Act (FCRA) is modeled after federal employment discrimination law. Just like federal employment discrimination law, the FCRA contains an anti-retaliation provision that protects employees from retaliation. Because the FCRA is patterned after federal employment discrimination law, courts accord the FCRA the same construction as placed on federal employment discrimination law. Thus, if an employee has been unlawfully retaliated against in violation of federal employment discrimination law, then the employee has also been unlawfully retaliated against in violation of the FCRA.

back to top

Q: What is unlawful retaliation under employment discrimination law?

A: For purposes of employment discrimination law, unlawful retaliation occurs when an employer subjects an employee to an adverse employment action because the employee engaged in statutorily protected activity under employment discrimination law. To prove unlawful retaliation under employment discrimination law, an employee does not have to prove that a retaliatory motive was the only or sole cause of the adverse employment action. Instead, an employee must only show that a retaliatory motive was at least a substantial factor behind the adverse employment action. This means that the adverse employment action would not have happened without the employee’s statutorily protected activity. Thus, employees can still prove they were unlawfully retaliated against in violation of employment discrimination law even when there were other objectively valid grounds for the adverse employment action.

back to top

Q: How do employees secure protection from retaliation under employment discrimination law?

A: To secure protection from retaliation under employment discrimination law, employees must engage in statutorily protected activity under employment discrimination law. Under employment discrimination law, employees engage in statutorily protected activity when they: (1) oppose an unlawful discriminatory employment practice; or (2) participate in an investigation or proceeding alleging unlawful employment discrimination.

When an employee opposes any act, decision, or conduct by an employer that constitutes an unlawful discriminatory employment practice, the employee has engaged in statutorily protected activity under employment discrimination law and, thus, is protected from retaliation. The most common way employees oppose an unlawful discriminatory employment practice is by making a complaint to their employer about perceived unlawful discrimination or harassment in the workplace. Consequently, employees who complain to their employer about perceived unlawful discrimination or harassment in the workplace have engaged in statutorily protected activity under employment discrimination law and cannot be retaliated against because of their complaint.

When an employee participates in an investigation or proceeding alleging unlawful employment discrimination, the employee has engaged in statutorily protected activity under employment discrimination law and, thus, is protected from retaliation. The most common way employees participate in an investigation alleging unlawful employment discrimination is by filing a complaint against an employer with the U.S. Equal Employment Opportunity Commission (EEOC) alleging a violation of federal employment discrimination law. Thus, employees who file a complaint against an employer with the EEOC have engaged in statutorily protected activity under employment discrimination law and cannot be retaliated against by an employer because of their EEOC complaint.

back to top

Q: Are employees protected from retaliation when making a generalized complaint of unfair treatment?

A: No. Employment discrimination law does not protect employees from retaliation when they make a generalized complaint of unfair or abusive treatment in the workplace. For example, employment discrimination law does not protect employees from retaliation when they make generalized complaints about unfair or abusive working conditions due to mismanagement, rude or obnoxious employee behavior, office politics, envy, nepotism, or spite. Simply stated, a generalized complaint of unfair or abusive treatment is insufficient to establish that an employee engaged in statutorily protected activity necessary to trigger protection from retaliation under employment discrimination law.

Under employment discrimination law, employees are protected from retaliation only when they complain about some form of discrimination or harassment prohibited by employment discrimination law. Employment discrimination law protects employees from discrimination or harassment on the basis of race, color, national origin, sex, pregnancy, religion, disability, or age. Thus, an employee who complains of unfair or abusive treatment in the workplace must link that unfair or abusive treatment to his or her race, color, national origin, sex, pregnancy, religion, disability, or age to qualify for protection from retaliation under employment discrimination law. In other words, the employee must complain that she was mistreated or abused because of his or her race, color, national origin, sex, pregnancy, religion, disability, or age. Simply complaining about unfair or abusive treatment in the workplace, standing alone, is not enough to trigger protection from retaliation under employment discrimination law.

back to top

Q: Must the conduct complained of be unlawful discrimination to trigger protection from retaliation?

A: No. A viable retaliation claim is not dependent on a viable discrimination or harassment claim. Courts have uniformly held that employees do not have to establish that the conduct complained of was in fact unlawful discrimination or harassment under employment discrimination law. Rather, courts have uniformly concluded that employees are protected from retaliation when they had a good faith, reasonable belief that the conduct complained of was unlawful discrimination or harassment under employment discrimination law. Thus, as the U.S. Eighth Circuit Court of Appeals observed in Buettner v. Arch Coal Sales, Inc., 216 F.3d 707 (8th Cir. 2000), “[a] finding of unlawful retaliation [ ] is not conditioned on the merits of the underlying discrimination [or harassment] complaint.”

For example, an employee claiming that she was fired in retaliation for complaining about sexual harassment is not required to prove that she was indeed sexually harassed in violation of employment discrimination law to be protected from retaliation. Instead, the employee need only show that she had a good faith, reasonable belief that the conduct constituted sexual harassment in violation of employment discrimination law to qualify for protection from retaliation.

Because an employee need only show a good faith, reasonable belief that the conduct complained of was prohibited by employment discrimination law, courts do not require employees to be an expert in employment discrimination law to qualify for protection from retaliation. Moreover, an employee’s belief may be reasonable, and thus protected, even if the employee turns out to be mistaken as to the facts or law. To prove that an employee’s belief was not sincere and reasonable, as the U.S. District Court for the Northern District of Illinois explained in Watkins v. Illinois Central School Bus, LLC, Case No. 14-cv-8037 (N.D. Ill. Aug. 16, 2017), an employer must show that the employee’s claim that the conduct complained of was prohibited by employment discrimination law is “completely groundless.” “A groundless claim,” the Watkins court observed, “is one resting on facts that no reasonable person could have construed as a case of discrimination.”

back to top

Q: How do employees oppose an unlawful discriminatory employment practice?

A: The most common way employees oppose an unlawful discriminatory employment practice is by making a complaint to their employer about perceived unlawful discrimination or harassment in the workplace. In Crawford v. Metropolitan Gov. of Nashville & Davidson County, 555 U.S. 217 (2009), the U.S. Supreme Court explained that “when an employee communicates to her employer a belief that the employer has engaged in some form of employment discrimination, that communication virtually always constitutes the employee’s opposition to that activity.” Thus, employees who lodge a complaint with their employer about perceived unlawful discrimination or harassment in the workplace have opposed an unlawful discriminatory employment practice and, thus, have engaged in statutorily protected activity under employment discrimination law.

Another way employees oppose an unlawful discriminatory employment practice is by making a complaint to their employer about perceived unlawful retaliation because of their prior statutorily protected activity. For example, an employee complains that her pay and hours were reduced because she complained about race discrimination in the workplace. Thus, employees who complain to their employer about perceived unlawful retaliation because of their prior statutorily protected activity have opposed an unlawful discriminatory employment practice and, thus, have engaged in statutorily protected activity.

However, an employee’s protected opposition activity under employment discrimination law is not limited to simply lodging a complaint with an employer. Rather, an employee’s protected opposition activity under employment discrimination law, as the U.S. Sixth Circuit Court of Appeals in Niswander v. Cincinnati Ins. Co., 529 F.3d 714 (6th Cir. 2008) observed, “covers conduct such as complaining to anyone (management, unions, other employees, or newspapers) about allegedly unlawful practices; refusing to obey an order because the worker thinks it is unlawful [under employment discrimination law]; and opposing unlawful acts by persons other than the employer—e.g., former employers, union, and co-workers.”

back to top

Q: Are workers protected from retaliation when complaining about racial discrimination?

A: Yes. Title VII of the Civil Rights Act of 1964 (Title VII) and the Florida Civil Rights Act (FCRA) make discrimination against employees on the basis of race an unlawful discriminatory employment practice. Under well-established law, racial harassment is a form of unlawful race discrimination. When an employee complains about perceived race discrimination or racial harassment in the workplace, the employee has engaged in statutorily protected activity under Title VII and the FCRA and, thus, is protected from retaliation. When an employer subjects an employee to an adverse employment action because of the employee’s complaint of race discrimination or racial harassment, the employer has unlawfully retaliated against the employee in violation of Title VII and the FCRA.

back to top

Q: Are employees who complain about national origin discrimination protected from retaliation?

A: Yes. Title VII of the Civil Rights Act of 1964 (Title VII) and the Florida Civil Rights Act (FCRA) prohibit employers from discriminating against employees on the basis of national origin. Courts have determined that national origin harassment is a form of unlawful national origin discrimination. When an employee lodges a complaint of national origin discrimination or harassment, the employee has engaged in statutorily protected activity under Title VII and the FCRA. When an employee is subjected to an adverse employment action because of a national origin discrimination or harassment complaint, the employee has been unlawfully retaliated against in violation of Title VII and the FCRA.

back to top

Q: Can employers retaliate against employees who complain about sexual harassment?

A: No. Title VII of the Civil Rights Act of 1964 (Title VII) and the Florida Civil Rights Act (FCRA) protect employees from discrimination the basis of sex. In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the U.S. Supreme Court ruled that sexual harassment is a form of unlawful sex discrimination. When an employee complains about perceived sex discrimination or sexual harassment in the workplace, Title VII and the FCRA protect the employee from retaliation. Because the Pregnancy Discrimination Act states that pregnancy discrimination is a form of sex discrimination, employees are also protected from retaliation when they complain about perceived pregnancy discrimination or harassment in the workplace.

back to top

Q: Does retaliation protection extend to employees who complain about age discrimination?

A: Yes. The Age Discrimination in Employment Act (ADEA) and the Florida Civil Rights Act make discrimination against employees on the basis of age an unlawful discriminatory employment practice. Under long standing law, age harassment is a form of unlawful age discrimination. When an employee complains about perceived discrimination or harassment on the basis of age, the employee has engaged in statutorily protected activity under the ADEA and FCRA and, thus, is protected from retaliation. When an employer subjects an employee to an adverse employment action because the employee lodged a complaint of age discrimination or harassment, the employer has unlawfully retaliated against the employee in violation of the ADEA and FCRA.

back to top

Q: Are employees protected from retaliation when complaining about alleged retaliation?

A: Yes. When employees complain about being retaliated against because of their prior statutorily protected activity, the complaint is another form of statutorily protected activity under employment discrimination law and, thus, they are protected from retaliation because of the complaint. For example, an employee who lodges a complaint claiming that she was denied promotion because of a prior sexual harassment complaint has engaged in statutorily protected activity under employment discrimination law and cannot be retaliated against because of the complaint. Likewise, an employee who complains that she was demoted because of a prior complaint filed with the U.S. Equal Employment Opportunity Commission has engaged in statutorily protected activity under employment discrimination law and cannot be retaliated against because of the complaint.

back to top

Q: Should employees use the word “discrimination” when making a discrimination complaint?

A: Yes. To engage in statutorily protected activity and secure protection from retaliation under employment discrimination law, employees must complain about some form of discrimination that is forbidden by employment discrimination law. Employment discrimination law prohibits discrimination against employees on the basis of race, color, national origin, sex, pregnancy, religion, disability, and age. Generalized complaints about unfair or abusive treatment do not qualify for retaliation protection under employment discrimination law.

To engage in statutorily protected activity under employment discrimination law, employees are not required to use any magic words, such as “discrimination,” when making a complaint. However, to ensure they engage in statutorily protected activity and qualify for protection from retaliation when complaining about perceived discrimination in the workplace, employees should use the word “discrimination.” Employees should also identify the type of discrimination they have experienced, such as race, color, national origin, sex, pregnancy, religion, disability, or age discrimination, and provide facts sufficient to support their complaint.

back to top

Q: Should employees identify the type of harassment experienced when making a harassment complaint?

A: Yes. To engage in statutorily protected activity and secure protection from retaliation under employment discrimination law, employees must complain about some form of harassment that is forbidden by employment discrimination law. Employment discrimination law prohibits harassment of employees on the basis of race, color, national origin, sex, pregnancy, religion, disability, and age. Generalized complaints about unfair or abusive treatment do not qualify for retaliation protection under employment discrimination law. To ensure they engage in statutorily protected activity and qualify for protection from retaliation when complaining about perceived harassment in the workplace, employees should identify the type of harassment they have experienced, such as racial, sexual, religious, or age harassment, and provide facts sufficient to support their complaint.

back to top

Q: How do employees participate in an investigation or proceeding alleging discrimination?

A: Under employment discrimination law, employees are protected from retaliation when they participate in an investigation or proceeding alleging unlawful employment discrimination. In other words, employees who participate in an investigation or proceeding alleging unlawful employment discrimination have engaged in statutorily protected activity under employment discrimination law and are protected from retaliation. Employees participate in an investigation alleging unlawful employment discrimination when they file a complaint against an employer with the U.S. Equal Employment Opportunity Commission (EEOC) alleging a violation of federal employment discrimination law. Employees who provide information to the EEOC during the course of its investigation have also participated in an investigation alleging unlawful employment discrimination. Employees participate in a proceeding alleging unlawful employment discrimination when they file an employment discrimination lawsuit against an employer. Employees who provide testimony during the course of an employment discrimination lawsuit have also participated in a proceeding alleging unlawful employment discrimination.

back to top

Q: What role does the EEOC play under federal employment discrimination law?

A: The U.S. Equal Employment Opportunity Commission (EEOC) is the agency of the federal government responsible for administering, interpreting, and enforcing federal employment discrimination law. Under federal employment discrimination law, employees are authorized to file a complaint against an employer with the EEOC alleging a violation of federal employment discrimination law. Once an employee’s complaint is received by the EEOC, the EEOC is responsible for providing the employer with a copy of the complaint and investigating the employee’s complaint. During the course of its investigation, the EEOC customarily requires the employer to respond in writing to the employee’s complaint. At the conclusion of its investigation, the EEOC makes a determination as to whether it believes the employer violated federal employment discrimination law.

back to top

Q: Does participation in an investigation or proceeding have heightened protection from retaliation?

A: Yes. Employees who oppose a perceived discriminatory employment practice must establish that they had a good faith, reasonable belief that the conduct complained of constituted a violation of employment discrimination law. Because of the good faith, reasonable belief standard, employment discrimination law does not protect employees from retaliation for all opposition activity. However, the good faith, reasonable belief standard does not apply to employees who participate in an investigation or proceeding alleging unlawful employment discrimination. Once an employee is found to have participated in an investigation or proceeding alleging unlawful employment discrimination, as the U.S. Sixth Circuit Court of Appeals in Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304 (6th Cir. 1989) explained, “the employee is generally protected from retaliation.” “Protection is not lost if the employee is wrong about the merits of the charge or complaint,” the Booker court explained, “nor is protection lost if the contents of the charge [or complaint] are malicious and defamatory as well as wrong.”

back to top

Q: Can my employer retaliate against me for filing a complaint with the EEOC?

A: No. Under federal employment discrimination law, employees are protected from retaliation when they file a complaint against an employer with the U.S. Equal Employment Opportunity Commission (EEOC) alleging a violation of federal employment discrimination law. Federal employment discrimination law also protects employees from retaliation when they provide information to the EEOC relating to the their complaint, including any information provided to the EEOC during the course of its investigation into the complaint. Thus, filing a complaint with the EEOC, or otherwise providing information to the EEOC relating to the pending complaint, constitutes statutorily protected activity under federal employment discrimination law. Moreover, employees are protected from retaliation when they inform their employer that they intend to file a complaint with the EEOC. Thus, employers are forbidden from retaliating against employees because of their intent to file a complaint with the EEOC.

back to top

Q: Are employees protected from retaliation by past or future employers?

A: Yes. In the vast majority of cases, employees are retaliated against by their present employer for engaging in statutorily protected activity during their employment. For example, an employee is fired by her present employer in retaliation for complaining about sexual harassment she experienced during her employment. However, employment discrimination law does not simply protect employees from retaliation by their present employer. Rather, employment discrimination law protects employees from retaliation by any employer—past, present, or future—because of their past or ongoing statutorily protected activity. Thus, employees are protected from retaliation by an employer even after the employment relationship has ended. For example, an employer is prohibited from refusing to rehire a former employee because the former employee engaged in statutorily protected activity during her previous employment. Employees are also protected from retaliation by an employer for having engaged in statutorily protected activity during their employment with a different employer. For example, an employer cannot fire a present employee because she had engaged in statutorily protected activity during her employment with a past employer. Likewise, an employer cannot terminate a present employee because she is engaged in an employment discrimination lawsuit based on her employment with a past employer. Similarly, an employer cannot refuse to hire a job applicant because she engaged in statutorily protected activity during her employment with a past employer.

back to top

Q: Are employees protected from retaliation when complaining about discrimination against other employees?

A: Yes. Employees are protected from retaliation when complaining about perceived unlawful discrimination or harassment against other employees in the workplace. For example, an employee is protected from retaliation when complaining about race discrimination or sexually harassing behavior towards another employee. Thus, employees do not have to be the target of unlawful discrimination or harassment to qualify for protection from retaliation under employment discrimination law. To qualify for protection from retaliation under such circumstances, however, an employee must satisfy two criteria. First, an employee must have complained that the other employee was subjected to discrimination or harassment because of the employee’s race, color, national origin, sex, pregnancy, religion, disability, or age. Second, an employee must have a good faith, reasonable belief that the conduct complained of was unlawful under employment discrimination law.

back to top

Q: Are employees protected from retaliation when refusing to engage in workplace discrimination?

A: Yes. Under employment discrimination law, employees are protected from retaliation when they oppose an employer’s unlawful discriminatory employment practice. In Crawford v. Metropolitan Gov. of Nashville & Davidson County, 555 U.S. 217 (2009), the U.S. Supreme Court ruled the term “oppose” should be based on its ordinary meaning: “[t]o resist or antagonize . . . to contend against; to confront; resist; withstand.” When an employee is instructed to engage in workplace discrimination, the employer is requiring the employee to engage in an unlawful discriminatory employment practice. Thus, when an employee refuses to engage in workplace discrimination, the employee is opposing an employer’s unlawful discriminatory employment practice and is protected from retaliation. For example, employees are protected from retaliation when they refuse to obey an instruction to discriminate on the basis of race when making employment decisions. Similarly, an employer cannot retaliate against employees who refuse to obey an instruction to discriminate against job applicants or employees on the basis of age.

back to top

Q: Are employees protected from retaliation when complaining about pornography at work?

A: Yes. Courts have determined that employees are protected from retaliation when they complain about the presence of pornography in the workplace. In doing so, courts have reasoned that the presence of pornography in the workplace, if it happens often enough, is the type of behavior that could constitute sexual harassment and create a hostile working environment. Thus, an employee who complains about being exposed to pornography in the workplace has engaged in statutorily protected activity under employment discrimination law and is protected from retaliation.

back to top

Q: Are employees protected from retaliation when complaining about a bad faith employer investigation?

A: Yes. Once an employee complains about perceived unlawful harassment in the workplace, such as sexual harassment or racial harassment, an employer must take prompt and effective remedial action to prevent the harassment from continuing. In order to satisfy their remedial obligation, as determined by the U.S. Fourth Circuit Court of Appeals in Swentek v. USAIR, Inc., 830 F.2d 552 (4th Cir. 1987), employers must investigate complaints of unlawful harassment in the workplace. However, as the U.S. Ninth Circuit Court of Appeals in Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001) explained, “an investigation that is rigged to reach a pre-determined conclusion or otherwise conducted in bad faith will not satisfy the employer’s remedial obligation.” An employee who complains about what she honestly and reasonably believes to be an employer’s bad faith investigation into her complaint of unlawful harassment has engaged in statutorily protected activity under employment discrimination law and is protected from retaliation.

back to top

Q: What is an adverse employment action?

A: Employers are prohibited from subjecting employees to an adverse employment action because they engaged in statutorily protected activity under employment discrimination law. In Burlington N. & Santa Fe R.R. Co. v. White, 548 U.S. 53 (2006), the U.S. Supreme Court defined an adverse employment action in the retaliation context as an act that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

Generally, an adverse employment action is an employment decision that inflicts economic harm against an employee, such as a demotion, failure to promote, reduction in pay or hours, suspension without pay, denial of overtime, forced administrative leave without pay, layoff, and termination. However, employment decisions that do not result in economic harm to an employee can also constitute an adverse employment action, including a negative performance evaluation, performance improvement plan, disadvantageous transfer, disciplinary action, and denial of work-related assistance and cooperation.

back to top

Q: Must employees be told they are being retaliated against in order to have a retaliation case?

A: No. As the U.S. Second Circuit Court of Appeals in Rosen v. Thornburgh, 928 F.2d 528 (2d Cir. 1991), “an employer who [retaliates] is unlikely to leave a ‘smoking gun,’ such as a notation in an employee’s personnel file, attesting to [retaliatory] intent.” Thus, employees are not required to have “smoking gun” evidence in order to prove unlawful retaliation. Because “smoking gun” evidence is not required to prove a retaliation case, it is not necessary for an employer to tell an employee that he or she was subjected to the adverse employment action for a retaliatory reason. For example, an employer does not have tell an employee that she is being fired for complaining about sexual harassment or refusing to discriminate against older workers. “Because an employer will rarely admit to retaliatory motives” when subjecting an employee to an adverse employment action,” as the U.S. Tenth Circuit Court of Appeals observed in Sanjuan v. IBP, Inc., 160 F.3d 129 (10th Cir. 1998), “retaliation cases generally must be proven by circumstantial rather than direct evidence.”

back to top

Q: Must an adverse employment action be related to an employee’s complaint?

A: Yes. To prove unlawful retaliation under employment discrimination law, employees must show there is a causal connection between their statutorily protected activity (e.g., a complaint of unlawful discrimination or harassment) and the adverse employment action. For example, an employee claiming that she was fired in retaliation for complaining about race discrimination must establish a causal relationship between her race discrimination complaint and her termination. In the retaliation context, a causal connection between an employee’s statutorily protected activity and the adverse employment action means there is a causal relationship between the two events. In other words, the employee was subjected to the adverse employment action because of the employee’s statutorily protected activity.

back to top

Q: How do employees show the adverse employment action is related to their complaint?

A: Employees can rely on a broad array of evidence to establish a causal connection between their statutorily protected activity (e.g., a complaint of unlawful discrimination or harassment) and the adverse employment action. No single piece of evidence is necessary to establish the requisite causal connection and all of the evidence is taken cumulatively in determining whether the requisite causal connection exists.

To prove a causal connection between your statutorily protected activity (e.g., a complaint of unlawful discrimination or harassment) and the adverse employment action, the broad array of evidence that you may rely on includes:

  • * You were subjected to an adverse employment action shortly after complaining about discrimination or harassment.
  • * After you complained about discrimination or harassment, the employer began scrutinizing your work performance or work attendance.
  • * After you made a discrimination or harassment complaint, the employer subjected you to disciplinary action, an undeserved negative performance evaluation, or a performance improvement plan.
  • * The employer subjected you to a pattern of antagonism after you complained about discrimination or harassment.
  • * The employer treated you differently and less favorably from other employees when subjecting you to the adverse employment action.
  • * Supervisors or managers made remarks reflecting anger, disapproval, or resentment about your discrimination or harassment complaint.
  • * Supervisors or managers made comments reflecting a desire or intent to retaliate against you for complaining about discrimination or harassment.
  • * The employer retaliated against other employees who complained about discrimination or harassment in the workplace.

back to top

Q: What is the most compelling evidence of unlawful retaliation?

A: Other than remarks by supervisors or managers reflecting a desire or intent to retaliate against an employee because of the employee’s statutorily protected activity, the most compelling evidence that an employee was subjected to unlawful retaliation is close timing between the employee’s statutorily protected activity (e.g., a complaint of unlawful discrimination or harassment) and the adverse employment action. In some cases, as the U.S. Ninth Circuit Court of Appeals explained in Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002), a causal connection between an employee’s statutorily protected activity and the adverse employment action “can be inferred from timing alone where an adverse employment action follows on the heels of a protected activity.” Generally, an employee can establish the requisite causal connection between a complaint and an adverse employment action solely on the basis of timing by showing that he or she was subjected to an adverse employment action within three months after making the complaint.

However, temporal proximity between an employee’s statutorily protected activity (e.g., a complaint of unlawful discrimination or harassment) and the adverse employment action is only evidence of causation and only one method of proving causation. Indeed, employees are required to prove a causal connection between the statutorily protected activity and the adverse employment, not temporal proximity between the two events. Thus, as the U.S. District Court for the Southern District of Georgia observed in Wiggins v. McHugh, 2010 WL 1640968 (S.D. Ga. April 22, 2010), “a significant gap in time does not destroy any causal connection.” Consequently, as the U.S. Seventh Circuit Court of Appeals in Lalvani v. Cook County, Illinois, 269 F.3d 785 (7th Cir. 2001) explained, “there will be cases in which [an employee] can demonstrate” a causal connection between the statutorily protected activity and the adverse employment action “despite a substantial time lag” between the two events.

back to top

Q: Can retaliation against other employees be used to prove my retaliation case?

A: Generally, an employee can use evidence of an employer’s retaliatory behavior against other employees to prove his or her retaliation case. This means that testimony from other employees that the employer retaliated against them after they engaged in statutorily protected activity under employment discrimination law can be used to prove the employer retaliated against you for engaging in statutorily protected activity under employment discrimination law. For example, testimony from another employee that she was fired after complaining about sexual harassment is evidence that the employer retaliated against you for complaining about unlawful discrimination or harassment in the workplace.

back to top

Q: What factors are relevant in evaluating whether I was subjected to unlawful retaliation?

A: Retaliation is the type of inquiry where everything depends on the facts and circumstances of each individual case. Thus, there is no mechanical formula for proving unlawful retaliation. Rather, unlawful retaliation can be proven in many different ways. In evaluating whether or not you were subjected to unlawful retaliation, including a retaliatory adverse employment action, it is helpful to consider the following questions:

  • * Did any supervisor or manager make any remarks expressing anger, disapproval, or resentment about your complaint of discrimination or harassment?
  • * Did any supervisor or manager make any comments reflecting a desire or intent to retaliate against you for complaining about discrimination or harassment?
  • * Were you subjected to an adverse employment action shortly after complaining about discrimination or harassment?
  • * After you complained about discrimination or harassment, did the employer begin to scrutinize your work performance, work attendance, or workplace conduct?
  • * After you complained of discrimination or harassment, did the employer reduce your hours, demote you, transfer you to a lesser position, give you an unfavorable work schedule, increase your work load, withhold work-related assistance, give you a negative performance evaluation, put you on a performance improvement plan, or subject you to disciplinary action?
  • * Did the employer target you for retaliation by subjecting you to a series of adverse employment actions after you complained of discrimination or harassment?
  • * In subjecting you to the adverse employment action, did the employer treat you differently or less favorably from other employees who engaged in the same or similar behavior?
  • * Were you subjected to adverse employment action for something other employees have done and were not disciplined or terminated for?
  • * When subjecting you to the adverse employment action, did the employer fail to follow any company policy, such as a progressive discipline policy?
  • * Did the employer fail or refuse to give you a reason for the adverse employment action?
  • * Do you believe the employer lacked “good cause” for the adverse employment action?
  • * Did the employer give you a false, factually untrue, or phony reason for the adverse employment action?
  • * Did the employer get your side of the story before subjecting you to the adverse employment action?
  • * If the employer justified the adverse employment action on the basis of poor work performance, did the employer notify you that your work performance was a problem and provide you with a meaningful opportunity to correct your work performance?
  • * Did the employer give different reasons at different times for the adverse employment action?
  • * After you complained about harassment in the workplace, did the employer take prompt and effective remedial measures to stop the harassment and prevent the harassment from continuing? An employer’s failure to take adequate corrective measures is evidence of an employer’s retaliatory motive.
  • * Did the employer fail to conduct a good faith, reasonable investigation into your complaint of discrimination or harassment in the workplace?
  • * Did the employer retaliate against other employees who complained about discrimination or harassment in the workplace?

If you answered “yes” to any question, you may be a retaliation victim.

back to top

Q: What damages are available for workplace retaliation victims?

A: There is a broad array of remedies available for victims of unlawful retaliation. A fundamental purpose of employment discrimination law is to make employees whole for injuries suffered due to unlawful retaliation. In other words, retaliation victims are entitled to be put in the position they would have occupied in the absence of retaliation. A victim of a retaliatory failure to hire, retaliatory demotion, retaliatory failure to promote, or retaliatory termination is entitled to recover back-pay. Back-pay awards generally reflect not only lost wages or salary, but also other benefits lost due to retaliation. To compensate for future damages, courts are authorized to reinstate retaliatory discharge victims. Retaliation victims are also entitled to recover compensatory damages for emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. Under most employment discrimination laws, punitive damages are also available for retaliation victims. The purpose of punitive damages is to punish employers who engage in unlawful retaliation.

back to top

Do You Have More Questions Or Believe You Have A Case?

Contact Our Citrus County, FL Retaliation Lawyers

Based on Ocala, Florida and representing workers throughout Central Florida, our Citrus County, Florida retaliation attorneys can help you take action to protect and vindicate your employee rights. If you have more questions or believe that you have a workplace retaliation case, please contact our office to speak with our retaliation attorneys. You will never have to pay to speak with a retaliation lawyer here. Our Citrus County, Florida retaliation lawyers take workplace retaliation cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award you recover.

back to top

Designed and Powered by NextClient

© 2015 - 2021 James P. Tarquin, P.A. All rights reserved.
This Custom WebShop™ attorney website is designed
by NextClient.com.

Contact Form Tab Close Menu