United States federal law prohibits employers from discriminating against employees on the basis of race, gender, national origin, religion, age, and disability. It also prohibits employers from retaliating against employees who report discrimination to the company, file a discrimination claim with the Equal Employment Opportunity Commission, or participate in an investigation into allegations of discrimination against their company. Unfortunately, many employers violate these laws and fire, suspend, or demote employees against these retaliation laws.
If your employer has taken any action against you that they believe may be retaliation, you should consider the following factors to help assess whether you can legally prove a claim of retaliation:
How long have you been in your company?
The longer you have worked successfully at your company, the more likely it is that your company’s claim of poor performance on your part is false. Think of it this way. If you had twenty years of raises, bonuses, and no grades, then you complained about discrimination, and a month later, for the first time in your career, you received a poor performance review, that’s a good indicator of retaliation. Compare that to an employee employed for less than a year with no history of success with the employer. In the latter case, the employer will likely be in a stronger position to defend a claim of poor performance.
What is your company’s written record regarding alleged performance deficiencies?
Companies now more than ever are getting smarter about creating a written record of an employee’s shortcomings to lend credibility to a claim of poor performance. If your company suddenly claims that it should be fired for poor performance, if you had no prior written warnings, or discussions about the suspected deficiencies, this could be a telltale sign of retaliation. Think of it this way: high turnover is costly for a company, and going through the hiring process and training new hires amounts to a big expense. Therefore, employers generally do not like to fire employees if they can fix performance problems first.
Were there other employees who had the same deficiencies who were not disciplined?
In retaliation cases, a court not only looks at what you allegedly did to obtain a sanction or termination, but also reviews the performance and work habits of employees in a similar situation to you at the same company. For example, if all the accounting clerks made the same kind of mistake, but you, the only one who complained of discrimination, were demoted, that seems suspicious.
It should have been terminated versus it would have been terminated.
Remember, the issue in retaliation cases is not whether you should have been fired. Many employees should be laid off, but not for a litany of reasons. The employer may not be in a position to hire a new employee. Perhaps the employer would rather have a poor employee than take a chance on someone new. Or maybe the employer was willing to live with an employee who had some deficiencies as long as he was not a troublemaker. The real issue is why the employer took the action against you and whether the employer actually would have fired you, had it not been for your discrimination complaint.
If you believe you have been the victim of retaliation, it is best to have your case evaluated by an attorney who focuses on this area of the law. Wrongful termination in retaliation is against the law.