What constitutes illegal retaliation at work?
Best Employment Lawyer Answer: The majority of wrongful termination cases against employers include retaliation claims. Retaliation occurs when an employer takes a “materially adverse action” against an employee because either the employee or someone close to the employee engaged in protected activity such as filing a complaint or assisting in an investigation. (Best Law Read: Proving Discrimination And Retaliation Claims Under Title VII; Why Retaliation Is The Easiest Employment Claim; Retaliation Not Excused By Also Firing Harasser). Although retaliation often involves being fired, did you know an employer can retaliate against an employee in other ways? Common examples of materially adverse actions include changes to an employee’s job duties, work hours, or pay rate, or disciplinary actions such as a write-up or suspension. (Best Law Read: What Are Examples of Unlawful Retaliation At Work?; Employers Cannot Retaliate Against Spouses, Siblings, Significant Others).
While an employer has the right to make changes during the normal course of business, it certainly raises a red flag when the employer appears to have made these changes because an employee has engaged in a protected activity, like reporting race discrimination or sexual harassment. To defend against a claim of retaliation, the employer must be able to provide a legitimate, non-retaliatory reason for the change. On the other hand, the employee must provide sufficient evidence to support their retaliation claim.
What law protect me if I report discrimination or harassment at work?
Top Employment Discrimination Attorney Answer: In addition to making it unlawful to discrimination against employees based on race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, disability, and age, federal employment laws, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act of 1967 (“ADEA”), prohibit an employer from retaliating against an employee “because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” related to discriminatory conduct. Igaski v. Illinois Dep’t of Financial and Professional Regulation, 988 F.3d 948, 959 (7th Cir. 2021), quoting 42 U.S.C. § 2000e-3(a).
How do you prove causation as part of a retaliation claim?
Best Wrongful Termination Lawyer Answer: In order for an employee to prove employer retaliation, an employee must provide evidence from which a reasonable jury could find: “(1) he engaged in an activity protected by the statute; (2) he suffered an adverse employment action; and (3) there is a causal link between the protected activity and the adverse action.” Lewis v. Wilkie; 909 F.3d 858, 866 (7th Cir. 2018). The employee’s evidence must support all three elements, or their retaliation claim will likely fail.
Of the three elements required to prove a retaliation claim, the third element is the most difficult to show. The employee must show there is a direct link between the protected activity in which they engaged, and the adverse action from which they suffered. This correlation is referred to as “but for” causation.” In other words, the employee must show that “but for” the protected activity, the adverse action would not have occurred. Causation can be established with direct evidence and/or indirect evidence.
With direct evidence, there is usually something that clearly shows the employee’s protected activity was the motivating factor in the employer’s decision to take the adverse action in question. Examples of direct evidence are usually obvious and blatant, such as overt comments, written documents, or even a short temporal proximity between the two events. Direct evidence is likely to be easily recognizable to a reasonable jury.
Indirect evidence is more circumstantial in nature, so it is the employee’s responsibility to draw the line making a strong inference as to the connection between their protected activity and the employer’s adverse action. In these situations, the employer may have a legitimate reason for taking the adverse action, so it is up to the employee to show their protected activity was the actual reason (motivating factor) behind the adverse action. Instances of indirect evidence are more subtle and usually have to be spelled out to be effective. There may be a string of events that when viewed separately, appear to be normal needs of the business, like a shift change or an assignment of additional or more difficult duties. However, if these seemingly innocent actions are combined with other factors such as an employer’s knowledge of protected activity, and/or a questionable or method of deciding who is affected by these actions, the employee can effectively establish causation with indirect evidence. (Best read: How Do You Prove Causation In Wrongful Termination Cases?)
A recent example of a case where an employee found himself trying to establish causation to prove retaliation is Lesiv v. Illinois Central Railroad Company; No. 21-2496 (7th Cir. 2022). Nazariv Lesiv worked as a carman for Illinois Central Railroad (“ICR”). Lesiv’s brother Lyoubomir was also a carman at ICR, but he was eventually terminated. After Lyoubomir was terminated, he brought a charge of discrimination and retaliation against ICR, and Lesiv served as a witness. As a witness, Lesiv testified in a deposition for his brother’s case. Nearly three months after he testified, Lesiv was assigned to a dangerous work assignment by himself. He was subsequently suspended when he refused to complete the assignment.
After his suspension, Lesiv filed a retaliation claim against ICR with the district court in Illinois. Lesiv’s claim stated that ICR retaliated against him for testifying in his brother’s deposition by (1) assigning Lesiv to the dangerous RIP track by himself, and (2) suspending Lesiv without pay when he refused to work the assignment by himself. ICR contended that (1) Lesiv’s being assigned to the dangerous RIP track by himself was an error in communication, and (2) ICR suspended Lesiv without pay for two days because Lesiv was hostile and insubordinate when he refused the assignment. ICR had presented a legitimate reason for both the dangerous work assignment and the suspension, so it was up to Lesiv to show this was clearly retaliation. (See Can My Boss Give Me Dangerous Assignments For Reporting Discrimination?).
Lesiv was able to show there was an adverse action (the dangerous assignment and suspension) and that he had engaged in protected activity (testifying in his brother’s deposition). However, he needed to fulfill the third element of retaliation by showing there was a causal link between the two events. Unfortunately, Lesiv never made the connection by either proving that the managers involved knew that he had testified for his brother, or by at least making a strong inference that his managers should have known, and therefore used that protected activity as a motivating factor in their decision to assign him to the RIP track and/or their decision to suspend him. Because this connection was never made or even strongly inferred, Lesiv lost on summary judgment in the district court, and the decision was upheld by the United States Court of Appeals for the Seventh Circuit.
Just because Lesiv lost his claim for retaliation doesn’t mean you can’t prevail in your own retaliation claim. Get the right help, so you can get the right result!
How do I sue my employer?
Best Employment Lawyer Answer: If you have been retaliated against at work after you engaged in some form of protected activity, such as reporting race, gender, or disability discrimination or sexual harassment, call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Ohio, Michigan, and North Carolina to get help now. Spitz, The Employee’s Law Firm, and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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