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How Do I Prove Employer Retaliation?

An employee who makes a formal complaint about discrimination or harassment is protected from retaliation by their employer. Companies are not allowed to punish their employees for enacting their labor rights. Although there are laws in place to protect workers from employer retaliation, more than 1/3 of discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) are for acts of retaliation from employers.

In order to prove employer retaliation, you must establish the following things:

  • What you did is a protected activity.
  • Your employer took negative action against you
  • A causal link between your activity and the action your employer took against you

What Is Considered Protected Activity?

Title VII, Section 1981 of the Civil Rights Act of 1866, the Americans with Disabilities Act, and the Age Discrimination in Employment Act prohibit retaliation against employees who partake in "protected activities." There are two kinds of activities that are protected under the law:

  • Opposition: Workers who oppose illegal acts are engaged in a protected activity. This protection extends to participating as a witness in an internal investigation of a complaint and refusing to go along with a discriminatory request.
  • Participation: Filing a charge of discrimination, assisting with an agency investigation, and being involved in a discrimination lawsuit are actions that are protected from employer retaliation.

What Is Considered a Negative Action?

An employer’s action can be considered negative if it would deter a reasonable employee from making a complaint or otherwise engaging in a protected activity. The following are examples of “materially adverse actions”:

  • Demotion
  • Discipline
  • Firing
  • Salary Reduction
  • Negative Evaluations
  • Transfer
  • Change In Job Assignments
  • Change In Job Duties
  • Change In Shift
  • Change In Other Terms & Conditions of Employment


Employer retaliation claims require an employee to prove more than the fact that their activity is protected. The negative job action and the employee’s activity must be connected. If the employer’s adverse action is completely unrelated to the employee's complaint, there's no retaliation. Employees can use the following types of indirect evidence to prove an act of retaliation:

  • Timing: Retaliation looks more likely if the adverse action happens right after the employee makes their complaint.
  • Knowledge: An employee must show the employer knew about the complaint or protected activity before the adverse action was taken.
  • Lack of Other Explanation: An employee can try to show that the employer had no other reason for taking the adverse action, or that the stated reason for the action doesn't make sense.

Are you facing retaliation from your employer or other people at your workplace? We can help. Contact our San Antonio workers’ compensation lawyer to talk about your case today.