Laws prohibiting workplace discrimination and other workplace laws protect employees who assert the rights given to them by law and the U.S. Constitution. Following are some commonly asked questions about employer retaliation against employees whose exercise of their rights is protected by law.
Q: I quit right after I filed a complaint against my employer with OSHA. Now that employer is giving me bad references. Is that considered retaliation?
A: Yes. An employer generally cannot retaliate against a former employee. Courts have allowed employees to recover damages resulting from retaliatory employer references. Courts may also treat as retaliatory unwarranted criminal prosecutions, unjustified government investigations and certain actions taken during the course of litigation, such as the filing of a counterclaim designed to intimidate the employee pursuing the lawsuit.
Q: How can I prove retaliation at work?
A: Since employers rarely admit retaliation, you must prove that there is a connection between your conduct that is protected by law and the employer’s adverse action. Evidence of a connection can include proof that:
• the employer did not investigate your complaint;
• you received unequal treatment compared to others who did not make complaints;
• your employer took action against you close in time to the protected conduct;
• there has been a pattern of adverse actions towards complaining employees; or
• you received a bogus explanation for your employer’s adverse action.
Q: How close in time must the retaliation be?
A: There is no exact amount of time that courts will consider close enough or too remote in every case, but courts expect employers to retaliate close in time to the protected conduct. As such, time may be the most important evidence of a connection between your protected conduct and your employer’s retaliation, particularly if the retaliation occurs so quickly after your conduct that nothing else could have happened in the interim to explain the employer's actions. On the other hand, courts have dismissed retaliation claims based on adverse actions taken months after an employee’s protected conduct, where the employee did not have any other evidence of a causal connection.
Q: Is there such a thing as retaliation by harassment?
A: Yes. A pattern of retaliatory harassment, even without a discharge or other economic loss, can be severe enough for a lawsuit.
Evidence of discriminatory retaliation is generally identical to that used to prove gender, age, race and other types of discrimination claims. This evidence can include the employer treating you differently from and worse than similarly situated employees who did not complain. It can also include a new employer policy that has a singularly adverse effect on the complaining employee.
Q: If I can prove that my employer’s explanation for firing me was bogus, can I prove retaliation?
A: Possibly. Since your employer is in the best position to know why you were discharged, proof that the employer made up a bogus reason suggests the employer is hiding an unlawful reason. That can be enough for a jury to find that the real, unlawful reason is retaliation.
Q: How might my employer’s failure to investigate my complaint show retaliation?
A: Even though there is no law that specifically requires all employee complaints to be investigated, an employer should adequately investigate every legitimate employee complaint. Failure to do a minimum investigation may suggest that the employer resented the complaint or supported the unlawful conduct being complained about. An adequate investigation should include:
• an interview of the complaining employee, the accused employee and any witnesses;
• a reasonable conclusion about the complaint’s validity; and
• a response consistent with that conclusion.
Q: What can I do while my boss is retaliating against me if I cannot, or choose not, to file a lawsuit?
A: First, do not give your employer any excuse to retaliate against you with discipline. Be polite and professional to the retaliator.
Second, keep a record of everything that happens to you. Keep documents that back up what you say as true. However, you should be careful not to violate any work rules that prohibit you from taking documents home or keeping them after you leave the company. If you have a question about whether you can keep a document that may help with your claim, consult an attorney before taking action.
Third, respond to unwarranted reprimands with polite rebuttals. You have to walk a fine line between holding your ground and appearing unwilling to correct alleged performance deficiencies. If you are at that point, consider working with an attorney on a response.
Finally, consider other employment opportunities. However, if you do not have a good exit lined up and you allow your employer no excuse to retaliate, the retaliation will either stop or you may have a retaliation case that is worth pursuing.
This "Law You Can Use" consumer legal information column was provided by the Ohio State Bar Association. It was originally prepared by Akron attorney Neil E. Klingshirn of Fortney & Klingshirn, and updated by Columbus attorney Jeffrey P. Vardaro of the Gittes Law Group.