The law protects all federal employees against discrimination and harassment in the workplace.
And yet, many employees suffer all kinds of injustice after standing up for their rights.
Countless other employees fear standing up for themselves because of the threat of retaliation. Unfortunately, retaliation in the federal workplace is common.
According to the U.S. Equal Employment Opportunity Commission (EEOC), there were over 34,000 complaints of workplace retaliation in 2021.
In fact, retaliation complaints made up 56% of all EEOC complaints filed that year.
Given these facts, it’s important to learn how proving retaliation works. Read on to learn about the legal elements of retaliation.
How to Prove Retaliation
Every successful retaliation claim requires meeting three elements.
To prevail on your retaliation claim, you first need to prove that you either participated in protected activity or refused to obey an illegal or unethical act.
After that, you need to show that your employer took some kind of adverse action against you.
Finally, you must establish a nexus between your employer’s adverse action and your earlier protected activity. Let’s explore these elements in more detail.
Participation in Protected Activity or Refusal to Carry Out an Illegal Act
“Protected Activity” is a legal term of art that is commonly heard in discrimination cases.
The most simple definition is any activity that receives federal or state legal protection. One great example is reporting discrimination.
Federal civil rights laws prohibit discrimination based on certain characteristics.
To encourage people to come forward and report discrimination, these civil rights laws grant protection to the act of reporting a violation.
Other protected activities include things like:
- Filing an EEO charge, complaint, or lawsuit;
- Communicating with your supervisor, director, or manager about any kind of illegal discrimination or harassment;
- Requesting reasonable accommodation based on a disability or religious belief; and
- Participating or being a witness in an EEO-related proceeding or lawsuit;
- Discussing salary information with your managers or co-workers to learn about potentially discriminatory wage practices.
Protected activity also encompasses any resistance to an illegal order. For instance, it would be protected activity to refuse an order from your director to fire a subordinate because of his race.
Finally, turning down sexual advances or taking action to protect others from sexual harassment generally constitutes protected activity.
Adverse Action Against You by Your Employer
Once you demonstrate that you participated in a protected activity, your next task is to prove you suffered an adverse action.
Adverse actions include any negative actions against the employee by the employer. As such, they can take on a variety of forms.
A few examples of adverse actions include:
- Being fired or demoted;
- Suffering a loss of pay or benefits;
- Having your work schedule changed to make it inconvenient;
- Receiving extra work or losing prestigious assignments;
- Being placed under extra scrutiny;
- Becoming the target of threats, rumors, slurs, or name-calling;
- Receiving verbal or physical abuse; and
- Being reprimanded, suspended, or otherwise chastised by management or human resources.
Although many kinds of adverse actions are obvious and blatant, others are more subtle.
As federal anti-discrimination laws do not prohibit the employer from disciplining an employee for legitimate reasons, shady employers will often try to camouflage retaliation.
For instance, your manager might say that he is laying you off because of “budget cuts” rather than your EEO activity.
When adverse actions are conducted for seemingly legitimate reasons, it is best to hire qualified legal counsel to assist you.
Connection Between the Adverse Actions and Your Protected Activity
The final and most tricky retaliation element to prove is the connection or causality between your employer’s adverse action and your protected activity.
Federal employment attorneys utilize three different characteristics to establish causality:
- Timing. The sooner the adverse action occurred after your protected activity, the easier it is to prove causality. Ideally, the time between the two events should be less than two or three months.
- Knowledge. Another factor is proving that the person responsible for the adverse action knew about the employee’s protected activity. Interoffice memos, emails, and other evidence can be crucial here.
- Credibility. In other words, how strong are the employer’s alleged reasons for taking the adverse action against you? One great way to establish credibility is by looking at how the employer has acted towards similarly-situated employees in similar situations.
Using one or more of these factors is vital to prove retaliation.
Have More Questions About Retaliation in the Federal Workplace? Let Us Help
Unlike other attorneys, the Law Office of Aaron D. Wersing, PLLC concentrates solely on federal employment issues.
That means we have in-depth experience with virtually every issue that arises in the federal workforce.
Besides our knowledge and experience, we also have a deep passion for serving the nation’s civil servants.
We care about your rights and want you to have a long and fruitful federal career. Don’t go it alone against your retaliatory employer.
Get the legal help you need so you can obtain the compensation you deserve.