Illegal retaliation in the workplace occurs when an employee engages in “protected activity” and then suffers retaliation by the employer. First, what does the term “protected activity” mean? That term describes certain complaints made by an employee such as reporting sexual harassment, whistle blowing, or employment discrimination. For example, if an employee tells her human resource department that her supervisor is sexual harassing her, that is “protected activity.” Retaliation would occur if her company later fired or demoted her because of her sexual harassment complaint.
As the Connecticut Employment Law Blog explains, timing is everything when it comes to proving retaliation. To win a retaliation case, an employee must prove that the adverse employment action (termination, demotion, etc…) was the direct result of the “protected activity” (the sexual harassment complaint to HR…). Often, the best and only evidence of “causation” is the fact that the employee was fired or targeted soon after making the complaint. For example, causation could be established if the employee had a record of positive reviews and then became the target of bogus poor performance complaints soon after reporting her supervisor for sexual harassment. That would be a classic retaliation case.
It used to be that the adverse employment action (bad reviews, demotion, termination, etc…) had to be close in time to the protected activity – usually within a few months. But a recent case in New York held that in some cases the timing need not be that close. For a good explanation of that case see the Wait a Second! Blog.
