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It is illegal for an employer to discriminate against any of its employees based on race, gender, religion, national origin, age or disability. It is also illegal for an employer to retaliate against an employee who seeks the protection of the anti-discrimination laws. Thus, an employee who actively opposes unlawful discriminatory practices, or who participates in proceedings relating to someone else’s discrimination claim, and suffers an adverse employment action as a result, may bring a separate claim of retaliation.

For example, it is illegal (and can result in an entirely separate claim) for an employer to fire an employee in retaliation for filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) or a similar state or local agency. It is similarly illegal for the employer to fire a second employee who participates in the subsequent EEOC investigation of the matter, in retaliation for the employee’s participation in the proceedings.

For example, it is illegal (and can result in an entirely separate claim) for an employer to fire an employee in retaliation for filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) or a similar state or local agency. It is similarly illegal for the employer to fire a second employee who participates in the subsequent EEOC investigation of the matter, in retaliation for the employee’s participation in the proceedings.

Basic Elements of a Retaliation Claim

In order to bring a retaliation claim for retaliation, an employee must be able to establish the basic elements of the claim, and allege the following:

1) The plaintiff engaged in a statutorily protected expression; 2) The plaintiff suffered adverse action by his/her employer; and 3) There is a causal link between the plaintiff’s protected expression and the adverse action taken by the employer.

“Protected expression” by the plaintiff can include: initiating charges,
testifying, assisting, or participating in enforcement proceedings.

Employer Response

Once the plaintiff has set forth the elements of his/her claim, the burden shifts to the defendant to assert a legitimate non-retaliatory reason the adverse action was taken. In cases where the employer had both a retaliatory and non-retaliatory motive - a “mixed motive” - for the adverse action taken against the plaintiff, the employer has the burden of proving that it would have made the same employment decision even if the retaliatory motive did not exist.

Plaintiff Response

If the employer succeeds in asserting a non-retaliatory reason for its action against the plaintiff, the burden of proof shifts back to the plaintiff. The plaintiff then has the opportunity to prove that the employer’s stated reason was not actually the true reason for its adverse employment action. The plaintiff must attempt to show that the reason stated by the defendant was merely a pretext for retaliation. Evidence used to prove that an employer’s treatment of the plaintiff was discriminatory may include evidence such as: different treatment of employees for the same conduct or misbehavior, deviation from ordinary policy, and reaction against the plaintiff after he/she engaged in protected activity.