Many workplace discrimination claims do not involve discrimination at all. The Equal Employment Opportunity Commission files more retaliation claims than any other type of employment discrimination claim.
When a victim claims retaliation, there is no need to prove discrimination. Usually, the victim need only establish a temporal relationship between the triggering event, which is usually a discrimination complaint, and the retaliatory action.
A majority of retaliation claimants say they were excluded from the decision making process or other prior job activities. Many individuals do not go to as many meetings or are no longer copied on emails.
In the cutthroat world of corporate America, word often gets out quickly regarding supposedly confidential investigations. That is particularly true if management is not especially diligent about preserving confidentiality. At that point, many workers chose sides, and many complainants feel the brunt of retaliation. If management encouraged, or even knew about, the cold shoulder, management may be guilty of retaliation.
The “Near Miss” Firing
Many employers think that a stern verbal warning is not retaliatory if no adverse action follows. In some cases, they are right. But in other cases, they are wrong. Many Illinois courts define “retaliation” in extremely broad and subjective terms. If the worker reasonably felt threatened, retaliation damages may be appropriate.
Denied Promotion or Pay Increase
Other employers think they can get lucky and avoid liability. For example, management considers Sue for a promotion, Sue complains about sexual harassment, and management suddenly decides to promote someone else. In that scenario, management would have a hard time convincing a jury that its decision and Sue’s complaint were completely unrelated.
Employers who retaliate with pay cuts know they are crossing the line. They typically hope that the employee will not consult an attorney and will simply ride off into the sunset. Other employers simply misunderstand the burden of proof or elements of a retaliation claim, and they hope that the victim will not seek legal advice.
The retaliation need not necessarily be employment-based, and online bullying is a good example. Although it has nothing to do with an adverse employment decision, online bullying is definitely a form of harassment. This tactic also poisons the well. The tweets, posts, and other online comments create a virtual paper trail that makes it more difficult to find a job later.
It is rather difficult to believe, but roughly a third of retaliation victims said they were physically attacked at work or physically harassed at home. Typically, the standard of evidence in employment retaliation cases is a preponderance of the evidence (more likely than not). So, if a worker complains about racial harassment on Monday and someone paints racist graffiti on the garage door on Wednesday, the two events are related, at least more likely than not.
Count on an Aggressive Lawyer
Retaliation may not be directly work-related, and it may not occur during business hours. For a free consultation with an experienced employment law attorney in Chicago, contact the Law Office of Mitchell Kline. We do not charge upfront legal fees in most employment discrimination cases.