Were you punished because you reported your employer for a legal violation or were involved in an investigation that was adverse to your employer? If you feel this is the case, you might have what is called a “whistleblower” or “retaliation” claim.
By now, many people are familiar with various state and federal laws that protect employees against discrimination based on age, sex, race, national origin, citizenship status, disability, and genetic information. The same statutes that prohibit this kind of discrimination also shield employees who engage in protected activity under the statute, ensuring that employees who work to uphold the law are not disciplined by their employer.
Employees who suspect they have been retaliated against should consider whether they participated in protected activity and whether they have the necessary evidence to show they were retaliated against.
What is “protected activity”? Most commonly, protected activity consists of reporting a violation or participating in an investigation of an alleged violation. Depending on the statute, what constitutes protected activity can be quite broad. Title VII for instance, protects employees who have “opposed” any unlawful practice or “participated” in any way in an investigation of alleged unlawful practices. “Opposing” an unlawful practice can cover a wide range of activity, from complaining to a newspaper about an illegal action to refusing to obey an order.¹ Even if a practice is legal, an employee is protected if he or she had a reasonable, good faith belief that it was in violation of the statute.²
What kind of evidence is needed to bring a claim? Often plaintiffs might mistakenly believe that they must have direct evidence, such as explicit statements by their employer that the adverse employment action was in response to a protected activity. But this is not the case. Employees can use circumstantial evidence showing that they engaged in a protected activity prior to the adverse employment action, and that their employer’s proffered legitimate reason for taking the adverse action is only a pretext for illegal retaliation.
In sum, you may have a claim for retaliation if you recently engaged in protected activity prior to suffering negative employment consequences. If you have reason to believe that adverse action was taken against you in response to your efforts to uphold a non-discrimination statute, contact an attorney to consider bringing a whistleblower claim against your employer. If you do not have direct evidence that their employer acted in retaliation against them. Direct evidence would include things such as explicit statements. Rather, plaintiffs generally set out to prove that their employer retaliated against them by using circumstantial evidence. If this is the case, a plaintiff must first prove a prima facie case, which consists of showing that 1. The plaintiff engaged in protected activity 2. The defendant knew of the protected activity 3. The defendant took a materially adverse employment action against the plaintiff and 4. A causal connection existed between the protected activity and the adverse employment action.
If the plaintiff successfully makes a prima facie case, the defendant must produce evidence that it had a legitimate reason for taking adverse action against the plaintiff. If the defendant succeeds at this step, the plaintiff must show that the legitimate reason proffered by the defendant is merely a pretext, by demonstrating that the reason is false, did not actually motivate the employer, or was insufficient to warrant such an adverse action.
Contact the Attorneys at Tishkoff
If you have questions or concerns about business law or related matters, be sure to reach out to a attorney in Michigan today. The team at Tishkoff is here to help. Call our office today. Toll Free: 1 (855) TISH-LAW.
- EEOC v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015).
- Johnson v. University of Cincinnati, 215 F3d 561, 579-580 (6th Cir. 2000).