Have you been against you? – Some helpful pointers
United States federal law prohibits employers from discriminating against employees on the basis of race, sex, 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 into 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 any action against you that you believe may be retaliation, you should consider the following factors to help determine whether you can legally prove a retaliation claim:
How long have you been with your company?
The longer you have been successful at your company, the more likely it is that your company’s claim of underperformance on your part is false. Think of it this way. If you’ve had twenty years of promotions, bonuses, and no feedback, then complained about discrimination, and a month later, for the first time in your career, received a failing performance review, that’s a pretty good indication of retaliation. Contrast this with an employee hired for less than a year with no previous track record of success with the employer. In the latter case, the employer is likely to be in a stronger position to defend a claim for insufficient performance.
What are your company’s written records regarding the alleged performance deficiencies?
Now more than ever, companies are becoming more adept at creating written records of an employee’s shortcomings to lend credibility to a claim of underperformance. If your company suddenly claims that you should be terminated due to insufficient performance, if you had no prior warnings, writing, or discussion regarding the alleged deficiencies, this may be a clear sign of retaliation. Think of it this way: high turnover costs a business dearly, and going through the process of hiring and training new employees is a big expense. Therefore, employers generally don’t like to fire employees if they can fix performance issues first.
Were there other employees with the same deficiencies who were not disciplined?
In retaliation cases, the court not only examines what you allegedly did to earn discipline or termination, it reviews the performance and work habits of employees similar to you at the same company. For example, if every employee in accounting made the same mistake, but you were the only one who complained of discrimination and was demoted, it looks suspicious.
Should have been discontinued vs. would have been discontinued.
Remember, the issue in retaliation cases is not whether you should have been fired. Many employees need to be fired, but not for multiple reasons. Perhaps the employer is unable to hire a new employee. Perhaps 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 flaws as long as he didn’t cause problems. The real issue is why the employer took the action against you and whether the employer would have actually fired you but for your discrimination complaint.
If you believe you have been the victim of retaliation, it is best to have your case evaluated by an attorney who specializes in this area of law. Wrongful termination as retaliation is against the law.
#helpful #pointers
