Is Retaliation Easier to Prove Than Discrimination?

Generally, yes, as claims of retaliation may be based on a broader range of behaviors than claims of discrimination.

Imagine a common scenario in employment law: An employee makes a discrimination complaint, the employer conducts an investigation, and the underlying discrimination claim turns out to be just a misunderstanding. However, shortly thereafter, the employee who made the complaint is subject to an adverse employment action, such as a transfer, a negative performance review, or termination. While the underlying discrimination complaint may not survive, the employee may nonetheless pursue a retaliation claim. Below, our Norfolk employment lawyers explain why retaliation complaints are so common, as well as how easy it is for employers to stumble into them.

What Counts as Retaliation?

Discrimination claims (such as those based on race, sex, or age) generally must be based on adverse actions that affect the conditions of employment, like pay, promotions, and work duties. However, retaliation claims may be based on a much broader range of behaviors. Under Supreme Court precedent, retaliation claims need not be related to employment-based harms. Rather, the key inquiry is whether a reasonable employee would find the action “materially adverse” such that it might dissuade a reasonable employee from making or supporting a charge of discrimination in the first place.

The standard for a claim of retaliation encompasses conduct that would not necessarily support a claim of discrimination, such as:

An unfavorable schedule change
A transfer to a less desirable location
A negative reference given to a prospective employer
Increased scrutiny or management following a complaint
Exclusion from meetings, projects, or communications

None of these behaviors, standing alone, necessarily rise to the level of an adverse employment action for discrimination purposes, but each may support a retaliation claim if it is the type of response that would discourage an employee from speaking up about discrimination.

For more examples of conduct that could be considered retaliatory, please speak to a Norfolk employment lawyer.

What Are the Elements of a Retaliation Claim?

Many types of employment discrimination claims require the employee to establish that they belong to a legally protected class and show that members outside that class were treated differently (i.e., more favorably), and that can be difficult.

With retaliation claims based on federal law, the employee needs to show only the following three elements:

The employee engaged in a protected activity. Protected activities can include reporting discrimination, participating in an anti-discrimination investigation, or refusing to engage in unlawful behavior, among others.
The employer took a materially adverse action against the employee. As we covered above, a “materially adverse” action is one that is likely to deter an employee from engaging in a protected activity.
There is a causal connection between the protected activity and the materially adverse action. For private-sector and state and local government employment retaliation claims, the employee must show that “but for” a retaliatory motive, the employer would not have taken the adverse action. For certain types of federal government employee retaliation claims, the employee may show that retaliatory motive was a “motivating factor.”

Often, the hardest element for employees to prove in retaliation claims is causation. That’s because retaliation claims require that retaliatory motive be the “but for” cause of the adverse action — in other words, the adverse action would not have occurred were it not for the employer’s retaliatory motive. By contrast, discrimination claims require that discrimination be a “motivating factor,” but not necessarily the sole factor, for the adverse action. For more information about proving or disproving the elements of retaliation, please speak to a Norfolk employment lawyer.

Does Temporal Proximity Play a Role in Retaliation Claims?

Temporal proximity between the protected activity and the adverse action is often strong evidence that the adverse action was based on retaliatory intent and can be useful for proving causation. For example, if an employee complains that a manager has made discriminatory comments and then the employer immediately transfers the employee to another location, that is strong evidence of retaliatory motive. However, temporal proximity alone is not necessarily enough to establish causation, and lack of temporal proximity does not necessarily bar a retaliation claim.

Guidance for Employees for Proving Retaliation

Because causation is often the most difficult element of retaliation to prove, employees who engage in protected activity should document the post-activity timeline carefully. That documentary record may include:

The date(s) you complained and to whom
Who at your employer was aware of the complaint
What changed after you made the complaint (e.g., disciplinary action, schedule change, hostile treatment by colleagues, etc.)

An employee’s record of the events that occur after engaging in a protected activity is often the most persuasive piece of evidence in a retaliation case.

Guidance for Employers to Avoid Retaliation Claims

For employers, any adverse action taken soon after an employee complains or otherwise engages in protected activity invites scrutiny. Often, the best defense against retaliation claims is contemporaneous documentation. Before taking action against an employee, consider the following:

Whether the performance issue (or other basis for the adverse action) was documented before the complaint was made
Whether similarly situated employees who haven’t complained have been treated similarly
Whether decision-makers involved in the action had knowledge of the complaint
Whether the timing of the adverse action could reasonably be perceived as connected to the complaint

Employers should consider the above issues even if the adverse action at issue was entirely justified.

Tackle Retaliation Complaints With a Norfolk Employment Lawyer

Retaliation complaints generally are easier to prove than discrimination claims, but they are not guaranteed to succeed. Employees must show that retaliatory motive was the “but for” cause of the adverse action, which employers can readily refute. As such, if you’re considering pursuing a retaliation complaint or are on the receiving end of one, your best bet for success is to work with experienced legal counsel. To get started, please contact a Norfolk employment lawyer at Pierce / Jewett by calling 757-624-9323 or using our online contact form.