Retaliation/Reprisal Claims


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


Retaliation occurs when you suffer an adverse employment decision (i.e., termination) in response to filing a claim of sexual harassment or discrimination against your employer. To show retaliation you must show:
(1) you engaged in a protected activity known to the employer;
(2) you were afterwards subjected to an adverse employment decision by the employer; and
(3) there was a causal link between your protected activity and your employer's adverse employment decision.


For what reasons can I be fired?


You can be fired for any "legitimate, non-retaliatory" reason as long as you are an at-will employee. Any employment decision not made on the basis of sex or in a retaliatory manner can be a legitimate reason. For example, if a company downsizes and is focusing on another area of business, you may not have a claim for wrongful discharge or retaliation. Traditional reasons for firing, such as excessive absences or tardiness, or violating company rules, are also legitimate reasons.


What is "protected activity"?


Protected conduct includes filing a complaint, or testifying or assisting in any proceeding under the New Jersey Law Against Discrimination (LAD). More broadly, your employer can not retaliate against you for exercising your rights under the LAD, or even for helping someone else to act under any right they have under the LAD.


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


There are two common ways to prove your case. The first is the timing of your discharge, if your discharge occurred shortly after the protected activity, you have a strong case. If there is evidence of ongoing antagonism, you also have a strong case. New Jersey courts will allow you to use any evidence that may help show that your employer was acting with the intent to retaliate.


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


An adverse action occurs when your employer fires, demotes, or fails to promote you as a result of your engaging in a protected activity.


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


Yes. You must show that your employer knew about your protected activity to establish the connection between your protected activity and the subsequent adverse action. Failure to prove your employer was aware of your protected activity will likely prevent you from sustaining a claim of retaliation.


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


The easiest way to show that your protected activity led to your being fired is through "temporal proximity." Simply put, if you were terminated very shortly after engaging in a protected activity, the timing itself is good evidence that the protected activity likely prompted the termination.


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.


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


Your employer has a chance to deny your allegations by offering legitimate reasons for which it fired you. Upon the employer's showing of legitimate, non-discriminatory reasons for your firing, you have an opportunity to disprove these reasons by demonstrating that your termination was in fact based on subjective, retaliatory motives. If you cannot show that your employer's actual reasons for termination were discriminatory, your employer will likely be able to successfully defend against your claim.


Does it matter when the discrimination occurred?


Under the LAD, you must file a claim with the New Jersey Division on Civil Rights within one-hundred and eighty (180) days of the discrimination. If you wish to bypass the Division, and file with the New Jersey Superior Court, you must file within 2 years of the discrimination. For more information on how to file a claim, href="../files/nj_file.php">click here


What options do I have if my employer has fewer than fifteen (15) employees?


While you are only protected under federal law if your employee has more than fifteen (15) employees, under the LAD, you are protected regardless of how many employees your employer has. So while you may not be able to file a federal claim, your claim in New Jersey is still valid.


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


You will be entitled to equitable relief, which is relief intended to make you whole again. You may be able to recover remedies such as back pay to compensate you for lost earnings, front pay to compensate for a pay differential resulting from discrimination, injunctive relief to correct your employer's discriminatory practices, or reinstatement to any position that you lost as a result of discrimination.



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