Retaliation claims in employment lawsuits have exploded over the last decade and have eclipsed other types of employment-related claims. In fact, according to a press release, in 2015, retaliation charges increased by nearly five percent and continue to be the leading concern raised by workers across the country.
What is Retaliation?
Generally speaking, an employee seeking to prevail on a charge of retaliation against an employer must prove that he or she engaged in protected activity, such as complaining about discrimination in the workplace or participating in filing a claim against an employer. The employee must also show that the employer knew about the employee’s protected activity and that the employer then took some type of adverse action against the employee, such as terminating his or her employment, suspending the employee, or giving the employee a negative performance review.
The employee must show that there is a connection between the adverse action and the employee’s protected activity. An employee who engages in protected activity doesn’t have to know that what the employer is doing is against the law; he or she just has to have a good faith belief that the employment practice was unlawful.
Courts analyze retaliation claims in the same manner as they do the underlying discrimination claim, through what is known as a burden-shifting test. The test goes something like this:
- The employee must prove a prima facie case of retaliation. This means that the employee must present enough evidence to create an inference of retaliation.
- Once the employee proves that he or she has a prima facie case, the burden shifts to the employer to demonstrate that it had legitimate business reasons for taking the adverse action against the employee.
- If the employer meets its burden, then the baton is passed back to the employee to prove that the employer’s stated reasons for the adverse action was merely pretextual.
An Employee Filed a Retaliation Claim; Now What?
Looking at the burden-shifting test above, it’s obvious that retaliation claims are fact-specific and can involve many different factors. The discovery involved can be extensive and the entire process labor-intensive and costly. Virtual Paralegal Services has senior labor and employment paralegals who can provide litigation support, legal research, document production support and trial preparation services to assist you.
Please contact us today to learn about how we can streamline the litigation process and provide experienced paralegal support.