For example, an employee charges a supervisor with sexual harassment. The charges are unfounded and the incident is forgotten, so one thinks. The employee is dismissed from his or her job a few months later by the same supervisor due to poor performance. Before the employee is out the door, the company is brought up on charges of retaliation.
Although the dismissal had nothing to do with the employee’s previous charge, the employer will have a difficult time proving its defense. The employee has a better case because there’s no question that the original complaint existed, providing motivation for the subsequent action.
An employee must prove the following elements if he or she is to prevail against the employer:
- He or she engaged in protected activity, meaning he or she opposed a discriminatory action in the company by voicing a claim (whistle-blowing), or filing a charge with the Equal Employment Opportunity Commission, or actually participating in a court case involving the company and a discriminatory claim.
- The employer was aware that the activity was protected.
- The employer took an adverse employment action against the plaintiff.
- There was a connection between the protected activity and the adverse action.
Fortunately for employers, there are limits to what types of retaliation claims employees can file. The courts most likely aren’t going to entertain absurd allegations of retaliation. For example in one case, a company’s general counsel claimed age discrimination when his position was eliminated in order to save money. He then filed a retaliation claim when the company refused to give an office, a secretary and phone to assist him in his job search. "The court found that even if there was a link between the discrimination claim and the refusal of office services, it was only a minor stumbling block and not an ‘adverse employment action’ which could form the basis for a retaliation claim," says Mango.
Workforce, October 1997, Vol. 76, No. 10, p. 21.