Discriminatory Retaliation Claims


It happened to me: A Real Life Story



What is retaliation or reprisal?


Under Title VII of the Civil Rights Act of 1964, retaliation is when you are fired, demoted, reassigned, denied benefits, denied promotion or not hired solely because they opposed an unlawful employment practice, such as discrimination or sexual harassment. This "adverse action" only qualifies as retaliation if it makes you worse off in your employment due to the protected activity.


Under Title VII, any conduct that alters an employees' compensation, terms, conditions or privileges of employment can constitute an adverse action. It is important to keep in mind that not everything that makes you unhappy at work is retaliation. The question of whether you have suffered an adverse action will normally depend on the facts of each individual case.


What are "protected activities"?


Protected activities include either opposing an act of discrimination made unlawful by Title VII, or participating in an investigation under Title VII. This includes acting as a witness in a co-worker's trial.


However, every complaint about conditions in the workplace does not constitute a protected activity. Retaliation in response to an activity that is not protected does not support a retaliation claim.



What is an example of retaliation in the workplace?


An actual example of retaliation can be found in Harris v. Fulton-Dekalb Hospital Authority. In that case, a female employee filed a sexual harassment claim against her employer. The employer then requested certain information from her that was related to her discrimination claim. She refused to provide the information to her employer and the employer again requested the information. When she refused again to provide the information to the employer, she was subsequently fired. A court in Georgia found that her case was sufficient for a retaliation claim.



How do I show that my legally protected conduct led to my discharge?


There are three basic steps to prove a retaliation case:
(1) You took part in investigating or opposing a discriminatory act;
(2) You suffered negative employment action, such as firing or demotion; and
(3) There is a causal connection between the two (a short time span between the original complaint and firing or demotion is sufficient proof of causation.)


After making your case, it will always be your responsibility to disprove your employer's excuses.



Are my co-workers protected if they support my claim?


Yes. Male and female coworkers are protected from all forms of retaliation under Title VII. This applies whether your coworkers encourage you to file a suit or testify on your behalf.


Your spouse can also make a retaliation claim if targeted for negative employment action because of your EEOC discrimination suit.


Your coworker's retaliation claim will be held to the same standards and procedures as one stemming from personally filing a discrimination claim.



What kind of excuses will my employer use? How do I get around those?


Once you have stated the initial requirements of your case, your employer will attempt to show a legitimate reason for the adverse action. Some common reasons employers use to fight a retaliation claim include the poor job performance, lack of qualifications for the position, violation of work rules, such as being excessively absent, or insubordination, or an inability to get along with co-workers or supervisors, as evident threats or actual violence towards co-workers.


If your employer offers legitimate reasons for the action taken against you, you then need to show that the reasons offered by your employer are just superficial excuses to act discriminatorily. To do this, you can use direct evidence to show that a discriminatory motive more likely than not motivated your employer in the employment decision. If you have no direct evidence of the retaliation, you should then try to show that the employer's excuse is not credible. To do this, you need to prove one of the following:
(1) The employer's explanation had no basis in fact; or
(2) The explanation was not the real reason; or
(3) The action was disproportionate to the excuse given.


However, it is important to keep in mind that your employer will not be held liable if he or she presents a legitimate non-discriminatory reason for the action, even if your participation in a protected activity influenced the decision.



My employer has fewer that 15 employees, is there anything I can do?


No. In Georgia you must bring a retaliation claim under Title VII, which requires that your employer have 15 or more employees.



Is there a time limit for when I can file a claim with the EEOC?


An employee has 180 days to file a retaliation claim with the EEOC. If the claim is not brought within the 180 days, the opportunity to file the claims is lost. For more information about filing a claim, please see How to File a Claim.



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