Retaliation/Reprisal Claims


What is retaliation and how do I prove it?


Retaliation is wrongful treatment by your employer for participating in the enforcement of the Maine Human Rights Act (MHRA), such as reporting a violation or assisting in someone else's claim. The MHRA allows you to bring retaliation claims against your employer. If you cannot present direct evidence of retaliation, such as comments from your employer indicating a retaliatory intent, you must meet the following requirements in order to prove retaliation under the act:

1. You engaged in statutorily protected conduct;
2. You suffered adverse employment action; and
3. That there is a causal connection between the protected conduct and the adverse employment action.


What is statutorily protected conduct?


Statutorily protected conduct is to oppose any violation of the MHRA by making a charge, testifying, or assisting in any investigation proceeding or hearing under the Act. The MHRA makes it unlawful for an employer to discriminate based upon sex regarding any matter directly or indirectly related to employment. Retaliation could take many forms. It could be as obvious as being fired for bringing a sexual harassment claim, or it could be as subtle as being reassigned to a less desirable position for educating a female co-worker about her rights under the MHRA.


What is an adverse action?


An adverse action is an action that hurts your employment, such as discharge, reduction of pay, demotion or divesting responsibilities, or failing to promote. The basic idea is that the adverse action must materially change the conditions of your employment. Just because your employer does something that displeases you does not mean that you have met the adverse action element. You must be able to show that your employer materially changed your working conditions so that you were disadvantaged.


The following are more examples of adverse employment actions: demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees. It is possible that even having your supervisory authority dramatically decreased could constitute an adverse employment action.


You do not have an adverse employment action just because your employer imposes additional responsibilities on you. If other employees, who are not engaged in the statutorily protected conduct, have similar demands placed on them, then courts will most likely find that you have not been subjected an adverse employment action.


What is a causal connection and how do I prove it?


To prove a causal connection you must present sufficient evidence to raise an inference that your protected activity was the likely reason for the adverse action. The time between your protected conduct and the adverse action can be strong evidence of a causal connection.


For example, a woman was on two occasions reassigned to less prestigious positions soon after she had filed claims of sex discrimination with the MHRC. The court decided that the close proximity of her reassignments and her claims, coupled with comments that she was a "troublemaker" by her supervisor, was enough evidence to show a causal connection.


On the other hand, the courts have decided that if you file a claim and your employer is unaware of this, then it is not possible to raise an inference that the charge was the cause of your firing or your negative treatment. Proving a causal connection is the most important and difficult element of making out a retaliation claim.


I can prove the initial requirements of retaliation, then what?


After you successfully show steps 1-3 above, your employer must then show a legitimate non-retaliatory reason for taking their adverse action against you. If your employer can show this, then you must prove that retaliation was the true cause. As stated above, proving a causal connection between your protected conducted and the adverse action is the most difficult element of making out a retaliation claim.



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