Your employer will never admit to workplace retaliation. If they did, it would be the same as if they promised to write you a large blank check. Instead, employers couch their actions in a way that is as plausibly deniable as possible. They may tell you that you are being denied a promotion or that you are being terminated because of your performance. However, you know the truth, and it is something that you need to prove if you are going to win a lawsuit for workplace retaliation.

Of course, you can always find the smoking gun email or communication that explicitly admits what the employer did and why they did it. However, this actually happens very rarely. Employers know enough to try to cover their tracks to make it as hard as possible for you to sue them successfully, especially after consulting human resources and their own attorneys.

What Are the Elements of Workplace Retaliation?

Generally, you would need to prove the following to demonstrate workplace retaliation:

  • You engaged in a protected activity, such as filing a claim for harassment or participating in an internal investigation.
  • The employer took some type of adverse action against you, which could include denying you a workplace benefit or terminating your position.
  • The employer knew or should have known that you engaged in a protected activity.
  • There is a causal connection between the adverse action against you and the protected activity that you undertook.

A protected action can be a number of things. You generally have rights in the workplace to do things like file an Occupational Safety and Health Administration (OSHA) complaint or bring discrimination or harassment to your employer’s attention. However, your employer may face consequences from your actions, so they try to make sure that you face penalties yourself. They may deny you benefits, such as the promotion that you were hoping for or the raise that you expected.

Can You Use Circumstantial Evidence to Prove Workplace Retaliation?

More often than not, you would try to prove your case using circumstantial evidence. This type of evidence is indirect, but when taken in its entirety, circumstantial evidence may be enough to prove wrongdoing. For example, you may be able to prove that the adverse action against you was a pretext and that the employer really intended to retaliate for something you did.

For example, if you have always received strong performance evaluations and were suddenly fired without warning, you could argue that it was pretextual. If your termination came in close proximity to your engaging in a protected activity, you may be able to use that to prove retaliation.

Here, you would also be closely scrutinizing the reasons the employer gave for taking some type of adverse action against you. An attorney would pick apart their story to try to find inconsistencies. In many cases, the employer has not necessarily coordinated their actions internally, and different people may be telling different stories. If the employer cannot pinpoint their reason for the adverse action and back it up with a logical and consistent story, it could be proof of retaliation.

In some cases, the employer may not have been able to maintain their facade. A manager could have made a loose statement that indicates that the adverse action was retaliatory. You may have witness testimony from people who heard what the manager or your employer has said. While this evidence may not be available to you in writing, you may have other means of proving that a manager said something inconsistent with the pretext.

Can You Use Documentation to Prove Workplace Retaliation?

It may be up to you to seek out clues for things that just do not seem right. You are the one who knows your employment situation and what seems to be normal workplace practice at your job. Once you can give your lawyer some openings and descriptions of potential weaknesses in your employer’s story, they can continue digging to learn and discover more information.

Remember that you can gain access to your employer and their records in a discrimination lawsuit. There is a discovery process in your lawsuit, where your attorney can request documents that are in your employer’s possession. They may be able to get their hands on emails that describe sensitive corporate communications. If someone was not careful, they may have even put something in writing that was inconsistent with the story that your employer gave for the adverse action. The email does not have to be detailed or directly inconsistent. You may begin to build your case by poking holes in your employer’s justifications.

Your lawyer would also be able to question your employers’ witnesses under oath in a deposition. The story may come undone under intense questioning from your attorney. Once a witness gives testimony at a deposition, they must testify consistently with it at trial. Many cases can be proven when your attorney is able to shine a bright spotlight on your employer during the discovery process. Before that point, you may be left with your word against theirs until you come up with some form of evidence that could prove you right and them wrong.

An Attorney Can Put You in a Better Position to Win

You always need an experienced employment law attorney when you are trying to prove retaliation. The time to contact an attorney is right after the adverse action because that is when you can gather the most evidence to prove your case. When your employer sees that you have hired an experienced attorney, they may begin to treat you differently because they are now aware of the possible consequences.

Contact a South Jersey Employment Lawyer at Burnham Douglass Today

Workplace retaliation cases often involve a pitched battle with your employer, and a South Jersey employment lawyer at Burnham Douglass is the one whom you want fighting on your behalf. You can begin your case by calling us today at 856-751-5505 or using our online contact form to schedule a free consultation. Our offices are in Marlton and Northfield, New Jersey, and we serve clients in South Jersey, including Marlton, Evesham Township, Cherry Hill, Camden County, Burlington County, Northfield, and Atlantic City.