Discriminatory Retaliation Claims
What is retaliation or reprisal, and how do I prove it?
Retaliation is wrongful firing for reporting a workplace violation you believe to be illegal. For example, if you reported unlawful discrimination based on age, sex, race, sexual harassment of yourself or another, or if you testified at a hearing against the company.
All retaliation claims are brought under the Illinois Human Rights Act (IHRA) which can be found at Illinois Department of Labor.
The IHRA preempts you from filing a common law claim based upon the retaliation.
How do I prove that I have been retaliated against?
Under the Illinois Human Rights Act to prove retaliation you must show that:
If you are able to prove all of the three of the factors above then your employer must show that you were fired for a legitimate non-discriminatory reason that was not pre-textual. Pre-text is a false reason given by the employer for the action to cover up the real discriminatory reason for the action. If your employer is able to put forward a legitimate non-discriminatory reason (they will most likely be able to do so), then you must show that its reason is pre-textual. If you are able to do this then you will have a valid claim in court and a chance of succeeding on your case.
For what reasons can I be fired?
You can be fired for a legitimate non-discriminatory reason. In other words, weak job performance, bad attendance record, violation of company policy and tardiness are all legitimate reasons for which you can be fired.
The state of Illinois follows a policy of at-will employment, meaning that your employer can fire you for any reason as long as it does not violate a clearly mandated public policy. The test for determining if retaliatory discharge violates a public policy is if it violates the purpose for which the constitutional or statutory provision was enacted. For example, the IHRA was enacted to prevent workplace discrimination so if you are fired in retaliation for reporting discriminatory activity, then the retaliation would violate a clearly mandated public policy.
How do I show that my legally protected interests have been violated?
In order to show that your discharge was in retaliation for you engaging in legally protected conduct you must prove a causal link between the filing of your cause of action (or other protected conduct, testifying, etc.) and the adverse employment action suffered. One way to show this is by showing a short period of time between your filing the complaint and the adverse action suffered. You must also prove that the employer knew about the protected conduct.
What is an "adverse action"?
An adverse action can include getting fired, being demoted, losing benefits, or being given less job responsibility.
The action must cause a materially adverse change in the terms and conditions of employment that is "more disruptive than a mere inconvenience or an alteration of job responsibilities."
For example, if you after you file a complaint you are transferred to another position at the same level with the same pay and benefits, that does not constitute an adverse action for retaliation purposes. Also, changing your work shift without a change in your title or responsibilities does not constitute an adverse action. Receiving a warning or a performance evaluation does not necessarily constitute an adverse action in and of itself.
Must I show that my employer knew about my "protected conduct"?
Yes. If your employer didn't know about your protected conduct, then any action taken against you is not retaliation. The burden is on you to show that you were retaliated against in response to your protected conduct. If you can not show that your employer knew about your protected conduct then you will not be able to prove that its legitimate reason for firing you is pretext.
What could my employer do to deny my allegations, and how do I respond to its denials?
The employer can present a "legitimate non-discriminatory reason" as rebuttal. Common examples might include unsatisfactory job performance or violation of company policies.
If the employer does present a non-discriminatory reason it is then up to you to show thatthe reason the employer provided is not the real reason for your termination. This can be proven if the employer simply tells you that they are firing you for engaging in protected conduct, like testifying in a case against the company. However, usually direct evidence such as this is unavailable. When such direct evidence is unavailable, though, inferences can be drawn in the employee's favor by showing circumstantial evidence that is relevant to the employee's situation.
While Title VII protects victims of sexual harassment from being terminated in retaliation for reporting harassment, an employee's complaint of harassment does not immunize her from being subsequently disciplined or terminated for inappropriate workplace behavior.
If I prove retaliation, what kind of remedies am I entitled to?
If you are able to prove retaliation then you have several remedies at hand. You can stop the adverse action like an unwanted transfer, you can get your job back, you can receive back-pay, lost benefits, restore lost seniority, and be reimbursed for any attorney and expert witness costs incurred as a result of trial.
The employer will also pay civil penalties between $10,000 to $50,000 and be made to submit reports detailing how it is complying. Awards of interest on your actual damages from the date of the civil rights violation is also recoverable.
If, in the process of filing your complaint, you received an offer in good faith from the employer to return to the same job with your position restored and resolving your complaint, you should entertain the thought seriously. Illinois law requires employees to reduce losses. If you fail to do so, you could forfeit back-pay.
My employer has fewer than 15 employees -- is there anything I can do?
The Illinois Human Rights Act generally does not apply to employers with less than 15 employees. For retaliation claims, however, there is no employee minimum, so you can bring a claim even if your employer has less than 15 employees.
Is there a time limit for when I can file a claim with the HRC?
Yes. You must file your claim within 180 days. Your employer must answer the allegations within 60 days or risk a default judgment.
|© Copyrighted by The WAGE Project, Inc|