Retaliation

Employment discrimination laws protect against retaliation at the workplace. The right to be free from retaliation is a foundation of the protections provided by employment discrimination laws. There is a great deal of confusion about what the term, retaliation, means in the context of employment law. An experienced Philadelphia employment discrimination attorney can determine whether you have a viable retaliation claim. The principle of all retaliation laws is that an employer cannot take action against an employee who exercises the employee’s right to make a good faith claim of employment discrimination, or assist another employee who has made an employment discrimination complaint. An employer accused of violating a law cannot take retaliatory action against an employee, whether it be an internal complaint of employment discrimination to the employer’s human resources department or by the filing of a charge of employment discrimination filed with the EEOC, or when an employee in some other fashion makes a good faith complaint of employment discrimination

The law protects employees from retaliation from employers when the employee engages in protected activity. Protected activity may consist of informal complaints to management concerning discriminatory activity, writing critical letters, protesting against discrimination by industry or society in general, expressing support of co-workers who have filed formal charges, participation in anti-employment discrimination proceedings, or opposition to discriminatory employment practices.

There are two types of protection from retaliation at the workplace. Employees are protected when they participate in certain discrimination proceedings or cases (known as the “participation clause”) and when employees oppose unlawful employment discrimination (known as the “opposition clause”).

Protected activity includes any situation where the employee opposes any unlawful employment practice (such as the filing of a discrimination complaint based upon age, race, sex/gender, religion, national original, sexual harassment or disability), or because the employee made a charge, testified, assisted, or participated in any manner in an investigation, proceeding regarding an alleged unlawful employment practice. Another example of when an employer engages in retaliation is when an employer takes action against any employee for making a good faith request for a reasonable accommodation due to a disability.

In order to establish what the law calls a prima facie case of retaliation; an employee Plaintiff must establish (1) that the employee engaged in protected activity (i.e. the filing of a charge of employment discrimination); (2) that the employee suffered a materially adverse employment action (such as the termination of employment); and (3) there is a causal connection between the adverse action and the protected activity.

An important legal term in retaliation cases is, temporal proximity, which is defined as the time that goes by between the protected activity and the discriminatory event. When only a short period of time separates the protected activity and an adverse employment decision, temporal proximity (the closeness of the timing) may provide evidence in itself, which would permit a judge or jury to infer that retaliation occurred. Courts look to temporal proximity as a measure of proof of a causal connection. In addition to timing, in order to support a finding of retaliation, other evidence of retaliation may include antagonistic conduct or animus which is expressed towards an employee after the employee complains about employment discrimination. Other evidence may include a poor performance evaluation which is issued after an employment discrimination claim is initiated, when prior to alleging employment discrimination, the employee had a history of superior work performance in earlier annual performance evaluations.

Whenever an employee has initiated a claim of employment discrimination, or engaged in some other form of activity that is protected by employment laws, such as request for a reasonable accommodation under the Americans with Disabilities Act, or a request for leave under the Family and Medical Leave Act, and the employee subsequently experiences retaliatory conduct or termination of employment as a result; an employee should consult an experienced Philadelphia employment discrimination lawyer. If you are afraid that you will suffer, or have already suffered retaliation at the workplace, you need an employment lawyer to advise you on your best course of action. We represent employees who have been subjected to retaliation. Call Abramson Employment Law at 267-470-4742 or contact us online to discuss your legal options.

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