Retaliation/Reprisal Claims


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


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


Retaliation is when an employee suffers an adverse employment decision (i.e., termination) from her employer for filing a claim of sexual harassment or discrimination. To show retaliation you must show:
1. that you engaged in a protected activity;
2. that your employer was aware of her participation;
3. that your employer took an adverse employment action against you; and
4. that a causal connection exists between the protected activity and the adverse employment action.


For what reasons can I be fired?


You can be fired for any reason that is "legitimate." 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 or if you are unqualified for a job, 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 conduct"?


Protected conduct includes filing a charge of discrimination or harassment, threatening to file a charge of discrimination or harassment, or assisting someone in filing a charge of sexual harassment or discrimination.


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


There are several ways in which you can show that your legally protected conduct led to your discharge. Timing is perhaps the biggest indicator of retaliation, but you can also show retaliation by showing that other employers who engaged in a protected activity were also fired and that employees who did not engage in a protected activity were not fired.


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, and that is considered retaliation.


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


Yes. You must show that your employer knew about your protected conduct in order to establish the connection between you engaging in the protected activity and subsequently being fired. Failure to prove your employer was aware of your protected activity prevents you from being able to bring 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, the timing between you engaging in a protected activity and subsequently being fired is often the best indicator of whether your employer fired you for engaging in a protected activity.


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


First and foremost make absolutely sure that you understand the reasons for which you are being fired. If you are unclear why you are being warned or fired, ask for clarification from your supervisor. If you feel that you are being warned or fired discriminatorily, assess the situation by looking at the timing of your firing and recent trends of your employer. If you have recently engaged in a protected activity you may have a claim of retaliation. If your employer has a trend of disproportionately firing women, you may instead have a claim of sex discrimination.


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 ease 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.




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