The Role of Evidence in Proving Workplace Retaliation

You’ve never particularly liked your boss, but now, he’s taken things too far. After catching him doing something illegal, you decide to blow the whistle on his shady actions. Come Monday morning, that boss tells you to clean out your desk. You’re one of many employees who have been victimized by workplace retaliation.

If you want justice, you need to understand the role of evidence in proving workplace retaliation. Below, Kent Pincin explains everything you should know to pursue a successful workplace retaliation claim.

What Is Workplace Retaliation?

Workplace retaliation is so much more than losing your job because you were late one too many times. Legally, workplace retaliation occurs when your employer takes an adverse action against you because you either:

• Refused to obey an illegal request
• Participated in a protected activity

“Protected activities” are those covered by law. They can include, but aren’t limited to:

• Talking about wages with your co-workers
• Filing or participating in a discrimination lawsuit
• Refusing to follow discriminatory orders
• Talking with a supervisor or manager about discrimination
• Filing a discrimination complaint with the Equal Employment Opportunity Commission (EEOC)
• Assisting in an EEOC investigation

Why Do You Need Documentation for Workplace Retaliation?

You need retaliation claim evidence because proving workplace retaliation is very difficult without it. Evidence in retaliation cases is necessary because:

• Workplace retaliation evidence bolsters the credibility of your claim. Without evidence, your claim can turn into a “he said, she said” situation. The court won’t know who is telling the truth.
• It establishes the facts of your case. The more facts you can provide, the easier it will be to win.
• It can demonstrate a pattern of behavior. For instance, if your employer cited “poor performance” as a reason for firing you, you could provide your recent performance reviews. If they’re all glowing, the employer is clearly up to no good.
• It helps to establish your damages. These can include lost wages due to firing or a demotion, as well as emotional distress.
• It protects you from false claims made by your employer.

Types of Evidence in Retaliation Cases

Now that you know the role of evidence in proving workplace retaliation, you may wonder what types of evidence you should gather. The right evidence depends on your case. A few examples include:

• Emails: If your employer sent you discriminatory emails or messages that allude to discrimination, you can use them as evidence.
• Performance reviews: Good reviews can be a magic bullet for your case if your employer fired you for “poor performance.”
• Witness statements: You can use statements from co-workers to back up your claim. For instance, co-workers can testify that they saw your employer harassing you.
• Documentation of retaliatory acts: This can include negative performance reviews, changes in your job responsibilities, or emails detailing your firing or demotion.
• Attendance records: If your employer let you go for coming in late or missing too much work, your attendance records can prove that they’re not being truthful.
• Work schedules: If you’ve always worked the morning shift and your employer suddenly moves you to the overnight shift, this can serve as evidence of retaliation.
• Awards and commendations: Have you earned any commendations, such as a promotion, and then suddenly lost your job due to “bad performance?” Those commendations can serve as excellent proof of retaliation. After all, why would your boss promote you only to fire you shortly after?
• Medical or mental health treatment records: If your employer physically attacked you in retaliation, you can use medical records to prove this. Likewise, mental health treatment records can prove that your employer caused you emotional harm.

Proving Retaliation in the Workplace

Proving workplace retaliation isn’t a walk in the park. To have a successful claim, you and your workplace retaliation lawyer will need to prove these three components.

Refusal To Obey an Illegal Request or Participation in a Protected Activity

You can only file a workplace retaliation claim if your employer retaliated against you for:

• Refusal to obey illegal requests
• Participation in a protected activity

Retaliation against the refusal to obey illegal requests is called “retaliation to opposition.” If your employer retaliated against you for participating in a protected activity, it’s called “retaliation to participation.”

Your Employer Took Adverse Action Against You

You must prove that your employer took some adverse action against you in retaliation. This could include demoting or firing you, taking away job responsibilities, or moving you to another shift.

Inference of Retaliation

To win your case, you’ll have to prove the connection between a protected activity and your employer’s adverse action. There’s usually little to no direct proof of this, so you’ll likely have to rely on circumstantial evidence instead.

We’ll Help You Gather Legal Proof of Workplace Retaliation

Now that you know the role of evidence in proving workplace retaliation, we invite you to reach out to Kent Pincin at (310) 376-0922 for a free consultation.