It’s essential to stand up for yourself, but you have to do it the right way. Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate against someone based on their race, color, religion, national origin, or sex. This law also prohibits retaliation against individuals who complain about discrimination, file a charge of discrimination, or participate in an employment discrimination investigation or lawsuit.
The Elements of a Retaliation Case
The elements of a retaliation claim under Title VII and the ADEA are: (1) the employee engaged in a protected activity; (2) the employee suffered an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action. See Wheat v. Fla. Par. Juvenile Justice Comm’n, 811 F.3d 702, 705 (5th Cir. 2016) (Title VII); Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254, 259 (5th Cir. 2001) (ADEA). See also Richards v. JRK Prop. Holdings, 405 F. App’x 829, 831 (5th Cir. 2010) (stating these as the elements the plaintiff must allege facts to show at the 12(b)(6) stage).
To establish causation, the third element of the retaliation cause of action, an employee must ultimately demonstrate but-for causation. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013) (Title VII); Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998) (ADEA).
Advice on Proving a Retaliation Case
If you want to be protected against retaliation, you must do something that is considered protected by the statute before experiencing demotion, denial of promotion, pay cut, or termination. Here are examples of protected activities:
- Complaining about discrimination to Human Resources
- Complaining about discrimination to the HR hotline
- Complaining about discrimination to your manager
- Complaining about discrimination you observed of other employees
- Filing an EEOC Charge of Discrimination
What Do You Say?
When complaining to HR or a supervisor, don’t hesitate to use the term “discrimination.” Many employees are afraid of rocking the boat and complaining about discrimination but it’s crucial to leave nothing to chance. Explain that you’re being treated differently because of your race, color, religion, national origin, or sex. The laws and courts do not protect you if you are complaining about office politics.
(Date of Protected Activities) must be BEFORE (Date of Retaliation)
Dates and timing are vital. In your EEOC charge and lawsuit, you have to state the date of your protected activity. Then you must identify and state the dates of each act of retaliation. The sequence of events is one important factor that courts use in evaluating a retaliation claim. You will also need to gather evidence to prove the connection between the complaint of discrimination (protected activity) and the termination (or other retaliatory actions). This is called the “causal link” in legal speak. Remember, protected activities include opposing discrimination on behalf of other workers too.
