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10 Things That Make A Good Retaliation Claim

It's obviously not a good thing to be the victim of retaliation. If you are, however, it may be helpful to know what factors make for a good retaliation claim, meaning one you are more likely to win. Here are some things to look for:

1. Temporal Proximity Between Protected Conduct and Termination. Courts look for whether there is close temporal proximity between protected conduct (e.g., complaints of illegal discrimination) and the termination because it's assumed (sometimes wrongly) that retaliation is an emotional decision. If you complained about discrimination and you were terminated within a few months, you have the makings of a good retaliation claim. If you were terminated 3 years after your complaint, you are going to need something more.

2. Before And After Evidence. An excellent performance record before protected conduct with write-ups following closely after protected conduct usually makes for good retaliation evidence. But beware that a good defense attorney will probably argue the write-ups were a result of a unmotivated disgruntled employee who didn't get the result he sought when he made his complaint of discrimination.

3. Long Term Employment Before Protected Conduct. Employee works for a company for 25 years. He then files a charge of discrimination. He is fired within three months. Even if the termination is pursuant to a reduction-in-force, his inclusion will look very suspicious. Good evidence.

4. Pretext Evidence. As a practical matter you must have this to have a good retaliation case. Pretext evidence is evidence the reason offered for termination is not credible. For example, the penalty doesn't fit the crime, the basis for the termination is unsupported by the evidence or other similarly situated employees whose performance was not as good were not terminated.

5. Manifested Hostility Following Protected Conduct. That the boss about whom you complained repeatedly demonstrates anger and hostility toward you or subjects you to higher scrutiny after the complaint is important evidence in a retaliation case. Such evidence is highly subjective and thus is often discounted by judges and sometimes juries, but the absence of such evidence can suggest the absence of a retaliatory motive. So, it's important to have.

6. "Not Eligible For Rehire." I always consider this one icing on the cake, particularly if the termination resulted from a reduction-in-force. Look, if it's really a reduction-in-force, an employee should be eligible for rehire, but I've had cases where the employee's internal termination form was marked "Not Eligible for Rehire." It's always interesting to hear the company's explanation for why a good performer is no longer eligible for rehire after making a complaint of discrimination.

7. Violations Of Company Policy. When a company violates its own policy, particularly a progressive discipline policy, in terminating an employee who has engaged in a protected conduct, it's almost always good evidence. Pulling the trigger before aiming signals an emotional decision, which is consistent with a retaliatory one.

8. Lack of Progressive Discipline. Even if a company doesn't have a progressive discipline policy, judges and juries expect employers to provide progressive discipline to their employees. It's an issue of fairness. The lack of it creates the same inference that arises from an employer violating its own policies.

9. Disparate Treatment Evidence. Evidence the plaintiff was treated less favorably than the other employees who had not complained about discrimination is what one would expect to see in a retaliation case. So, it's good to have it.

10. Retaliatory Remarks. Retaliatory remarks from the decision-makers is very helpful, but I've found retaliatory remarks to be more uncommon than in other types of cases. If you have evidence of such remarks, count yourself lucky.

The foregoing list is not exhaustive and all are not necessary to make a strong retaliation case, but the more the better. GSF

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