Retaliation

 

I think my employer fired me because I filed a sex discrimination claim.

 

It happened to me: A Real Life Story

 

a. What is retaliation or reprisal, and how do I prove it?

 

b. For what reasons can I be fired?

 

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

 

d. What is an "adverse action"?

 

e. Must I show that my employer knew about my "protected conduct"?

 

f. What could my employer do to deny my allegations, and how do I respond to its denials?

 

g. If I prove retaliation, what kind of remedies am I entitled to? (New window to WDIGIIW)

 

h. My employer has fewer than 6 employees – is there anything I can do? (New window to WDTLS)

 

i. Is there a time limit for when I can file a claim with the MCAD? (New window to WDTLS)

 

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a. What is retaliation or reprisal, and how do I prove it?
It is retaliation when you filed a complaint or reported suspected discrimination to your employer and, as a result, you are fired, demoted or otherwise negatively affected. To prove retaliation, you must show that you engaged in "protected conduct" (in this case, reporting or filing a complaint of suspected discrimination), that you were "adversely affected" (which could mean that you were fired, demoted or disciplined, for instance) and that your "protected conduct" caused the adverse action.

 

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b. For what reasons can I be fired?
You can be fired for any reason that is not discriminatory – for example, if your employer considers your work to be inadequate or lacking, that is a legitimate reason for firing you. Some other examples for legitimate reasons include: unexcused or excessive absences, frequent tardiness and violating a company policy.

 

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c. How do I show that my legally protected conduct led to my discharge?
There are several ways that this can be shown. One of the most common and effective is if your termination (or other adverse action) took place within a short time after your protected activity – this is called "temporal proximity." Causation may also be shown by other evidence, including evidence of your employer’s attitude towards you, treatment of you, and any statements your employer may have made to you about your complaint or report.

 

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d. What is an "adverse action"?
Adverse action can take many forms. It can be as basic as being fired or it could be unwarranted disciplinary action. Anything that negatively affects you or your working environment may be considered adverse action.

 

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e. 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, while it may still be discriminatory, may not be retaliation.

 

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f. What could my employer do to deny my allegations, and how do I respond to its denials?
In Massachusetts, there are three steps to proving a case of discrimination. First, you must provide evidence which, if everything you alleged was true, would prove that your employer discriminated against you. This is called your "prima facie case." Next, your employer will be given an opportunity to produce a "plausible, legitimate and nondiscriminatory justification" for its conduct. Finally, you must rebut your employer’s argument and show either that the actual motivation was discriminatory or that the employer’s proffered reason for its conduct was pretext (a false or invented reason advanced to cover for a real, discriminatory reason). At all times, it is your responsibility to prove that discrimination was a "determinative factor" in the employer’s decision fire you, for instance. However, "determinative factor" does not mean that discrimination was the only factor. You are not required to disprove all possible reasons that your employer could have had for firing you, only that the reason your employer produced is not the real reason. If, for instance, you succeed in persuading the court that your employer’s proffered reason was pretext, you should prevail in your case. In the end, the judge or jury will weigh all the evidence and decide if there is enough evidence to infer discriminatory intent on the part of your employer.

 

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