How To Prove Retaliation in the Workplace

Many California workers suspect that their employers have violated employment law. However, they might hesitate to report this behavior to HR for fear that they will face negative consequences for doing so. 

Retaliation is unlawful in California. When it occurs, employees may have legal options available under state or federal law. Knowing how to prove retaliation in the workplace can help you begin gathering evidence that might be relevant to your case. 

If you believe you have experienced retaliation in California, contact D.Law for a legal consultation. 

What Is Retaliation in the Workplace?

Retaliation in the workplace refers to when an employer punishes an employee for engaging in a legally protected activity. For example, an employer cannot fire or demote an employee for reporting discrimination or other unlawful behavior in the workplace. 

The California Fair Employment and Housing Act protects workers against retaliation throughout the state. California Labor Code Section 1102.5 also protects “whistleblowers,” or individuals who report suspected violations of employment law. 

If you can establish a causal connection between your reports against your employer and their negative actions against you, you might have grounds for a retaliation claim. 

Examples of Retaliation in the Workplace 

Retaliation can encompass a broad range of adverse employer actions. However, it generally involves your employer taking negative action against you after you upheld your rights under employment law.

Examples of behaviors on your part that may have preceded retaliation include:

• Reporting discrimination to HR
• Filing an official complaint against your employer with the Civil Rights Department (CRD) or the Equal Employment Opportunity Commission (EEOC)
• Serving as a witness for a coworker whose rights have been violated by your employer
• Requesting accommodations for your religion or disability
• Taking lawfully entitled leave
• Resisting a coworker’s sexual advances
• Calling out inappropriate jokes or comments from a coworker
• Discussing wages with coworkers
• Questioning your employer’s discrimination or harassment policies
• Refusing to perform illegal tasks 

Meanwhile, these are examples of ways an employer might unlawfully retaliate against these activities:

• Demoting you and decreasing your pay
• Moving you to a less desirable position
• Terminating your employment
• Passing you over for a promotion or raise
• Reducing your hours or salary
• Choosing you for layoffs
• Excluding you from meetings or workplace events
• Denying you opportunities to attend seminars or conferences

How To Prove Workplace Retaliation in California 

Proving workplace retaliation in California involves establishing a causal connection between your legally protected activity and your employer’s adverse action. This generally entails proving several criteria:

• You engaged in legally protected behavior.
• Your employer took negative action against you.
• Your employer’s action was not justified or was the result of another reasonable cause

First, you need to establish that your actions were legally protected. This may be a relatively straightforward process that involves referencing California or federal employment law. A few similar worker actions that may not be legally protected are:

• Actions that violate workplace rules, company policy, or your employment contract (as long as those policies do not also violate employment law)
• Actions that endanger others
• Actions that disobey lawful and reasonable instructions from a supervisor

Next, you need to show that your employer took negative action against you. If they terminated your employment, demoted you, or took other action that is also in writing, proving this might be straightforward. But if they began treating you unfairly or excluded you from company events, you may have less evidence of their behavior. You might look for these types of evidence:

• Testimony from witnesses of your employer’s behavior
• References to a comparator employee who was treated more fairly while otherwise being similar to you
• Documentation of any communications detailing the retaliatory behavior

Establishing causation is often one of the more challenging steps in proving retaliation in the workplace. Employers rarely admit to taking a negative action because the employee engaged in a protected activity. 

Your attorney can help you assess available evidence and determine how it may support a potential retaliation claim. Evidence might include:

• Testimony from coworkers or supervisors to whom your employer admitted retaliation
• Performance reports showing that you were performing as well as other workers who did not face negative actions
• HR reports or other documentation showing past retaliation claims made against your employer

In the course of your retaliation claim, the CRD or EEOC might ask your employer directly for the reason they took adverse action against you. If they cannot provide a lawful justification for doing so and the evidence otherwise supports a claim, a finding of retaliation may be possible. 

What To Do If You Suspect Retaliation in the Workplace

If you suspect your employer retaliated against you, start by reviewing your employee handbook and workplace policies to determine the internal procedures for reporting claims. If your company has an HR department, file an official complaint against your employer through HR. 

Your HR department should investigate the complaint and take steps to rectify the situation. If it does not offer appropriate legal remedies, you may decide to file a complaint at the state or federal level instead.

The CRD or EEOC can investigate the case and determine whether your employer acted unlawfully. If so, the organization might pursue a lawsuit against your employer on your behalf or, more commonly, issue you a “right to sue” notice, giving you the legal right to pursue legal action. 

Before filing any external claims or complaints, talk to an experienced employment attorney in California about how to proceed. 

Contact D.Law for Assistance With Retaliation Claims 

If you believe you have experienced retaliation in the workplace, you may have the right to pursue legal remedies and financial damages. Begin collecting documentation and evidence, familiarize yourself with workplace retaliation examples, and review your workplace policies to determine your next steps.

If you are wondering how to prove retaliation in the workplace, an experienced employment attorney can help you understand the legal process. Contact D.Law today at (818) 275-5799 to schedule an initial consultation with our California employment lawyers.