Signs of Workplace Retaliation, and How to Prove it
Workplace retaliation occurs when an employer punishes an employee for engaging in legally protected activity, such as reporting discrimination, harassment, or safety violations. Unfortunately, retaliation is not always overt. It can be subtle, difficult to detect, and even more challenging to prove. Understanding the signs of retaliation and knowing how to document it properly is essential for protecting your rights and ensuring accountability.
Recognizing Common Signs of Retaliation
How can an employee tell the difference between legitimate disciplinary action and unlawful retaliation? While not every negative workplace experience is a result of retaliation, there are several indicators that suggest an employer may be responding to an employee’s protected activity with punitive measures.
One of the most common signs is a sudden change in treatment after the employee has raised a concern or filed a complaint. This can include being excluded from meetings, denied resources necessary for job performance, or being left out of communications that are critical to one’s role. If an employee previously had a positive work record and suddenly begins receiving negative performance reviews without a clear justification, this may also point to retaliation.
Another red flag is when an employee is reassigned to undesirable shifts, given less favorable duties, or has opportunities for advancement withdrawn. These actions, particularly when they occur shortly after the employee has taken a legally protected action, can indicate an intent to penalize the employee indirectly.
Is termination always the result of retaliation? Not necessarily. Although being fired is one of the most severe forms of retaliation, it is not the only one. Demotions, reductions in pay, relocation, and even verbal abuse or intimidation can all be forms of retaliation. The key element is whether the employer’s actions are motivated by the employee’s decision to assert their rights under the law.
Establishing a Link Between the Protected Activity and Retaliation
What does an employee need to prove retaliation occurred? To build a strong case, an employee must demonstrate three essential elements: that they engaged in a protected activity, that they suffered an adverse employment action, and that there is a causal connection between the two.
Protected activities include a wide range of actions such as reporting discrimination, participating in workplace investigations, requesting reasonable accommodations, or filing a claim with a government agency. The adverse action does not need to be as severe as termination—it only needs to be significant enough to deter a reasonable person from engaging in that activity again.
Timing often plays a critical role in proving causation. If the adverse action occurred soon after the employer became aware of the protected activity, this timing can help establish a connection. However, timing alone is not always sufficient. Additional evidence, such as written communications, witness testimony, or a history of positive performance prior to the protected activity, can strengthen the claim.
Can an employer offer a non-retaliatory reason for the action? Yes, and often they will. Employers commonly argue that disciplinary actions or termination were based on poor performance, business restructuring, or other legitimate reasons. This is why gathering evidence is so important. If inconsistencies exist in the employer’s explanation, or if similarly situated employees were treated more favorably, this can help to discredit their justification.
Building a Case and Protecting Your Rights
How should employees document potential retaliation? Meticulous documentation is key. Employees should keep copies of performance reviews, emails, written warnings, and any other relevant communication. Keeping a detailed journal that outlines the timeline of events—including when the protected activity occurred and what retaliatory actions followed—can also be invaluable.
Employees should also make note of any changes in the behavior of supervisors or colleagues. For example, if a manager suddenly becomes hostile, micromanages without cause, or begins isolating the employee, these behaviors may be worth documenting. Comparisons with coworkers who have not engaged in protected activity can also help reveal patterns of discriminatory or retaliatory treatment.
What if the retaliation has already led to termination or resignation? Even if employment has ended, an employee may still have grounds to bring a retaliation claim. Constructive discharge—when a work environment becomes so hostile that the employee is forced to resign—can also be considered a form of retaliation. Speaking with a legal professional promptly ensures that deadlines for filing a claim are not missed and that the employee’s rights are preserved.
Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Protect Your Workplace Rights
If you suspect that you are being retaliated against at work, our team at Sidkoff, Pincus & Green P.C. is here to help. Speak with our Philadelphia employment lawyers to learn more. Contact us online or call us at 215-574-0600. Located in Philadelphia, we serve clients in Pennsylvania and New Jersey, including South Jersey.
