Retaliation/Reprisal Claims


It happened to me: A Real Life Story


What is retaliation, and how do I prove it?


Retaliation is an adverse employment action against an employee for making a complaint or filing a charge against an employer because the employee has opposed any unlawful discriminatory practice or because that employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.


To establish a claim of retaliation, you must show the following:
(1) You engaged in protected activity;
(2) Your employer knew of your engagement in the activity;
(3) You suffered an adverse employment action; and
(4) There was a causal link between the protected activity and the adverse action.


How do I show that I engaged in protected activity?


You can show that you engaged in protected activity, for the purposes of a claim of retaliatory discharge, by showing that you opposed a discriminatory employment practice or made a charge, testified, assisted or participated in any investigation, proceeding, or hearing concerning discriminatory employment practices.


How do I know if what I opposed is considered a discriminatory employment practice?


A discriminatory employment practice is defined under R.C. 4112.02 as discrimination because of the race, color, religion, sex, national origin, disability, age, or ancestry of any person. Complaining to the employer about sexual harassment is a protected activity for the purposes of a retaliatory discharge claim. Opposing an employer's condoning of illegal discrimination is also a protected activity for purposes of claim of retaliatory discharge.


How do I show that I suffered an adverse employment action?


Adverse action 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 an adverse action. However, for your claim to amount to an adverse employment action, the change in your employment must be more disruptive than mere inconvenience or alteration of job responsibilities, such as being transferred to a different department. The action must materially affect the terms and conditions of your employment.


How do I know if the discrimination materially affected my employment?


Factors to think about when determining whether an employment action was significantly adverse and has effected the terms and conditions of your employment include:
(1) If you were terminated from your place of employment;
(2) If there is evidence to show some form of demotion evidenced by a decrease in wage or salary;
(3) If you were given a less distinguishable title;
(4) If you experienced a material loss of benefits; or
(5) If your responsibilities have been significantly diminished.


Is my company liable for my supervisor's adverse action?


An employer can be held liable for discriminatory behavior, such as sexual harassment, exercised by a supervisor to a victimized employee. After a complaint is filed with your employer, it is its responsibility to prevent and correct the behavior.


How do I show that there was a causal link between the protected activity and adverse action?


The retaliation must have occurred shortly after the protected activity in order for there to be a sufficient "causal connection." For example, courts have found that no reasonable person could find that a connection existed between the protected activity and the discharge when the protected activity took place more than one year prior to the employee's discharge.


Although courts may look to proximity between the adverse action and the protected activity to determine whether there is a causal connection between the two, other evidence is usually required, especially where more than a few days or weeks separate the events.


It is important to note when the adverse action took place. If too much time passes, you may be barred from filing a claim because a time limitation begins to run on the day the adverse action took place.


What happens after I establish the requirements of retaliation?


Unfortunately, meeting the four requirements of the retaliation claim is not all that is required to win your case. Once you meet the requirements, your employer will be given an opportunity to produce a "legitimate and non-discriminatory justification" for its conduct.


For what reasons can I be fired?


An employer can fire an employee for a legitimate, non-discriminatory reason. Examples of this include, but are not limited to, poor attendance, insubordination at work, and/or a poor performance evaluation.


If my employer gives a justification for its conduct, but I still think it was motivated because I reported discrimination, is there anything I can do?


Once your employer offers a legitimate, non-discriminatory reason for its conduct, you have the opportunity to 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).


An employee bringing an employment discrimination claim can establish pretext by demonstrating that: (1) the employer's offered reasons for the adverse employment action had no basis in fact, (2) the reasons did not actually motivate the employee's discharge, or (3) the reasons were insufficient to motivate discharge.


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


Yes. If your employer did not know about your protected conduct, then any action taken against you, while it may still be discriminatory, may not be retaliation.


My employer has fewer than 4 employees -- is there anything I can do?


Yes. You may be able to bring an independent civil action under a claim of wrongful discharge in violation of public policy. The requirements for the claim are as follows:
(1) That a clear public policy existed and was manifested in a state or federal constitution, statute, or administrative regulation, or in the common law. This is referred to as the "clarity requirement."
(2) That dismissing employees under circumstances like those involved in the employee's dismissal would jeopardize the public policy (in other words, your dismissal would run contrary to general societal expectations about how employees should be treated by their employers). This is referred to as the "jeopardy requirement."
(3) The employee's dismissal was motivated by conduct related to the public policy. This is referred to as the causation requirement.
(4) The employer lacked overriding legitimate business justification for the dismissal. This is referred to as the overriding justification requirement.


Just as with the requirements for claims brought under R.C. 4112, the employee must show that each element is more likely than not to be true in order to succeed.


How do I meet the clear public policy requirement?


There must be a clearly expressed public policy (i.e., a societal expectation about how employees should be treated by their employers) that is evident in the laws against discriminating on the basis of sex in order to succeed on a claim for wrongful discharge. For example, Ohio anti-discrimination law R.C. 4112.02 expresses a public policy against gender discrimination.


See the "jeopardy element" section below for an example of a clear public policy.


How do I meet the jeopardy requirement?


You must demonstrate that dismissing other employees under circumstances like your own would jeopardize the public policy (in other words, you must show that your employer's actions run contrary to general societal ideas about how employees should be treated by their employers). If you are fired because you are a woman, this would violate the public policy concerns regarding gender discrimination, which are expressed in Ohio's anti-discrimination law R.C. 4112.02.


In one case, a woman brought a claim for wrongful discharge in violation of Ohio's public policy against pregnancy discrimination. The court held that she met both the clarity and jeopardy requirements listed above because she demonstrated that firing pregnant employees would be in violation of Ohio's clear public policy against pregnancy discrimination expressed in R.C. 4112.


How do I meet the causation requirement?


You must show that your discharge was motivated by conduct related to the public policy. If there is a jury trial, the jury will decide whether this requirement is satisfied. Because this kind of case is infrequently brought, there are few examples of discriminatory firing cases that succeeded in proving this requirement.


How do I meet the overriding justification element?


The final requirement of the wrongful discharge claim is that you demonstrate that your employer lacked an overriding legitimate business justification for your dismissal. The jury decides if you have met this requirement. This is similar to the part of the case brought under the statute where the employer has a chance to offer a legitimate, non-discriminatory reason for the discharge, and the employee has to show that the reason given was pretextual. Again, since this cause of action is infrequently pursued, examples of successful claims are rare, but this is comparable to the showing "legitimate, non-discriminatory reason" was pretext, which is discussed above.



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