Saturday, May 9, 2009

Have You Been Retaliated Against? - Some Helpful Pointers

United States federal law prohibits employers from discriminating against employees on the basis of race, gender, national origin, religion, age and disability. It also prohibits employers from retaliating against employees who report discrimination to the company, file a discrimination claim with the Equal Employment Opportunity Commission or participate in an investigation regarding allegations of discrimination against their company. Unfortunately, many employers violate these laws and terminate, suspend or demote employees against these retaliation laws.

If your employer has taken some action against you that you believe may be retaliatory, you should consider the following factors to help assess whether you may be able to legally prove a retaliation claim:

How long have you been with your company?

The longer you have been successfully employed with your company, the greater the likelihood that your company's claim of a deficient performance on your part is false. Think about it this way. If you had twenty years of raises, bonuses and no write ups, then complained about discrimination and a month later for the first time in your career, received a deficient performance evaluation, that's a pretty good indication of retaliation. Compare that with an employee employed for less than a year with no prior track record of success with the employer. In the latter case, the employer will likely be in a stronger position to defend a claim of deficient performance.

What is your company's written record regarding the alleged performance deficiencies?

Companies now more than ever are getting savvier about creating a written record regarding an employee's deficiencies to lend credibility to a claim of deficient performance. If your company suddenly contends that you should be terminated for deficient performance, if you had no prior warnings, write ups or discussion about the alleged deficiencies, this could be a tell tale sign of retaliation. Think of it this way: high turnover is costly to a business and going through the hiring process and new employee training amounts to a large expense. Therefore, employers generally don't like to terminate employees if they could first fix the performance issues.

Were there other employees who had the same deficiencies that weren't disciplined?

In retaliation cases, a court not only studies what you allegedly did to earn discipline or termination, it reviews the performance and work habits of employees similarly situated to you at the same company. For example, if every employee in accounting made the same kind of error, but you the only one who complained about discrimination was demoted, that looks suspicious.

Should have been terminated versus would have been terminated.

Remember, the issue in retaliation cases is not whether you should have been fired. Plenty of employees should be fired, but aren't for a litany of reasons. Perhaps the employer isn't in a position to hire a new employee. Maybe the employer would rather have a deficient employee than take a chance on someone new. Or maybe the employer was willing to live with an employee who had some deficiencies as long as he wasn't a trouble maker. The true issue is the reason the employer took the action against you and whether the employer would have actually terminated you, but for your discrimination complaint.

If you believe you have been a victim of retaliation, it is best to have your case evaluated by an attorney concentrating in this area of law. Wrongful termination by way of retaliation is against the law.

© 2009: Morris E. Fischer, Esq., is a labor and employment lawyer who handles employee rights in the federal and private sectors. For more information, see The information you obtain on this article is not intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.

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