Retaliation/Reprisal Claims


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


Under the Missouri Human Rights Act (MHRA), it is unlawful for someone to retaliate or discriminate against you because you have opposed a practice prohibited by law or because you filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding or hearing conducted pursuant to the MHRA.


To establish the basic elements of unlawful retaliation under the MHRA you must show that: (1) you complained of discrimination; (2) your employer took adverse action against you; and (3) the adverse action was caused by the complaint of discrimination.


For what reasons can I be fired?


Generally, if you do not have a contract that contains a statement of employment length, you are considered an employee at-will which means you may be discharged at any time, with or without cause.


What is "protected conduct"?


Protected conduct is conduct for which you cannot legally be punished. In retaliation cases it generally entails either "opposition" or "participation." In opposition cases, you engage in protected conduct when you oppose an act that is made unlawful by the MHRA, for example opposing discriminatory hiring practices on the basis of sex at the workplace. In participation cases, you engage in protected conduct when you participate in an investigation, hearing, or proceeding (whether by filing a charge, testifying, assisting, or otherwise participating) that occurred under the MHRA. Both opposition and participation are protected activities under the MHRA, and an employer is prohibited from retaliating against you for such conduct.


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


Generally, if you show a close link in time between your legally protected conduct and your discharge you will have an initial claim of retaliation. Your employer, however, may put forth a valid reason for the discharge despite the close link in time. Ultimately, you want to gather all your facts, records, papers, and witnesses, to show that your actions, which were legally permissible and protected, led to your discharge.


Did my employer retaliate against me by taking an "adverse action"?


Yes. The MHRA protects employees from any adverse action taken in retaliation for filing a sex discrimination claim. Adverse action includes any tangible change in your working conditions or employment terms. For example, if you are denied a promotion, demoted, given fewer days of vacation, or denied certain benefits previously granted, you may have experienced an adverse employment action.


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


Yes. For you to succeed on a claim of retaliation your employer must be aware of the protected activity in order for you to show a causal connection between your protected activity and the adverse employment action you suffered.


What evidence must I show to prove that my "protected conduct" led to my being fired?


You must show that after you filed a sexual harassment claim, opposed a discriminatory practice, or participated in a proceeding under the MHRA, your employer took affirmative actions against you that led to an adverse employment situation or discharge. Such evidence can include emails, verbal communications between you and your supervisor, any actions or statement witnessed by others, or letters he/she sent you.


I've just received a warning from my employer, and I suspect I will be fired soon. What should I do?


If you receive a warning from your employer, your first instinct may be to panic or even become angry. Depending on the circumstances, you should remain calm, especially since your employer may continue monitoring your work. Generally, you should begin gathering information: clarify the warning if necessary by asking your employer, get a copy of company policy on warnings/dismissals to ensure that your employer is following its own policies, talk to trusted co-workers to see if they have any insights into what they have observed in the workplace, keep track of the date/time of interactions with your employer as well as any documents that may be relevant, and, most importantly, consider whether the warning may have something to do with sex discrimination or complaining about sex discrimination. Ask yourself if your employer's warning comes on the heels of your confronting the company about sex discrimination. If so, there may be more to the warning than meets the eye.


What can I do to protect any legal rights I might have before leaving my job?


The easiest way to protect your legal rights before leaving your job is to document everything. Even if you initially feel as if your firing was not retaliatory or discriminatory, cover all of your bases by asking for the termination letter in writing, and saving all written warning letters. To aid in any potential claims you may have against your employer, document the dates of any decisions or actions affecting your employment, including salary or benefit increases/decreases, recommendations, and reprimands.


I am being forced to leave my job. But before I go, my employer requires that I sign a document promising not to sue. Is that legal?


It is not illegal for your employer to get you to sign a waiver of your right to sue as part of a severance agreement. Be conscious that you are taking a risk if you sign a waiver, as they are generally enforceable. If you have any doubts about your employer's reasons forfiring you, especially if you think your employer may be retaliating or discriminating against you, you should consult with an attorney before signing anything.


What could my employer do to deny my allegations, and how do I respond to their denials?

If an employee establishes an initial presumption of retaliation to sustain a claim under the Missouri Human Rights Act (MHRA), the burden then shifts to the employer to show a legitimate, non discriminatory reason for its actions; if that burden is met, then the employee must present evidence showing that employer's reason was just an excuse for retaliation.


Does it matter when the discrimination occurred?


Yes. You must sign and file a verified complaint in writing with the Missouri State Human Rights Commission ("the Commission") within one hundred eighty (180) days of the alleged act of discrimination. For more information, please see What Does the Law Say.


What options do I have if I my employer has fewer than 6 employees?


If your employer has fewer than six (6) employees you may not sue under the Missouri Human Rights Act. However, you may have other options. For more information, please see What Does the Law Say.


If I prove my retaliation claim, what kind of remedies am I entitled to?


You may be entitled to injunctive relief or monetary damages. For more information, please see Remedies.



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