What Are The Three Elements of Retaliation?
By Corey Hanrahan
What are the three elements of retaliation? To establish a claim for retaliation, an employee must prove: (1) that he/she engaged in a protected activity; (2) that the employer subjected him/her to an adverse employment action; and (3) a causal link between the protected activity and the employer’s action. That may seem fairly simple, but the terms “protected activity” and “adverse employment action” are terms of art in the law.
“…an employee must prove: (1) that he/she engaged in a protected activity; (2) that the employer subjected him/her to an adverse employment action; and (3) a causal link between the protected activity and the employer’s action…“
First, “protected activity” includes bringing a charge, testifying, assisting or participating in any manner in proceedings or hearings under a statute. It also includes opposing acts that are made unlawful by statutes. This is the most common type of protected activity (an employee opposes an employment practice that is made unlawful by statute). This could include complaining of sexual harassment, or complaining of the employer’s failure to pay overtime wages or provide rest and meal periods. Protected activities do not include reporting violations of an employer’s own internal policies, though.
Second, “adverse employment action” not only includes terminations, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement.” In short, this would be actions taken by the employer that would dissuade a reasonable worker from engaging in a protected activity.
Employees’ ability and right to oppose unlawful behavior plays an important role in making sure that employers are not violating the law. If employees were not protected in reporting and opposing unlawful conduct, employers would be a lot less likely to follow the law. Therefore, retaliation claims play an important role in keeping employers honest.
If you have been subjected to any form of retaliation, or are hesitant to make a complaint of unlawful conduct at work, contact The Hanrahan Firm for a free consultation.
