Is It Hard To Prove Retaliation?
By Corey Hanrahan
Is it hard to prove retaliation? This all depends on the facts of your case. A skilled employment attorney can conduct the necessary investigation and take depositions to prove your retaliation claim. But admittedly, it can be a difficult task for someone without extensive knowledge of retaliation laws.
“…If the employer knows that an accommodation is failing to allow the employee to perform his or her job, the employer is required to explore further arrangements…“
Retaliation cases are usually won and lost on the ability to show that an employer’s stated reason for engaging in retaliatory conduct is pretextual (i.e., a lie). California (and federal law) both apply the McDonnell Douglas burden-shifting test in retaliation cases. Under the McDonnel Douglas test, the following three-step framework is used:
- First, the employee has the burden to prove a prima facie case of discrimination (that he/she engaged in a protected activity; that the employer subjected him/her to an adverse employment action; and a causal link between the protected activity and the adverse employment action);
- Second, the burden shifts to the employer to articulate a legitimate, nonretaliatory reason for the action taken;
- Third, the burden shifts back to the employee to prove that the employer’s stated reason is pretextual.
The third step in the McDonnel Douglas framework is probably where your litigation will focus. Pretext can be shown with either direct or circumstantial evidence. Even a small amount of direct evidence can show an employer’s intent to retaliate. This could be a single remark by a supervisor that you are not going to be a pay raise due to filing a discrimination complaint. It can also be shown by specific and substantial circumstantial evidence. This could include the timing of events, how similarly situated colleagues were treated more favorably, etc.
Litigating retaliation cases takes a great deal of knowledge and skill, and you would be best to seek representation from a skilled and experienced retaliation attorney. If you have been subjected to any form of retaliation, contact The Hanrahan Firm for a free consultation. We have helped employees all across California with pursuing their rights against retaliation.
