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How do employees prove retaliation?

Under both federal and Kentucky laws, employees have protection if they report harassment and discrimination, or even blow the whistle. This means that the law protects them against retaliation in the workplace.

And yet, retaliation is still the most common charge filed with the Equal Employment Opportunity Commission (EEOC) at both the state and federal levels. Even though it is one of the most common charges, it can be a challenge to prove retaliation.

There are three criteria to prove retaliation:

1. The worker must prove they engaged in a protected activity

Workers have many rights in the workplace. One of the most important rights they have is the right to work in an environment that is safe and free of discrimination.

If workers do not experience these basic rights in the workplace, the law protects them when they report legal violations. For example, a worker has the right to report an incident of sexual harassment to their supervisor or Human Resources.

2. The worker experienced adverse actions

Then workers must prove they experienced negative employment actions. The EEOC reports that these actions could include:

  • Termination
  • Demotion
  • Wage reduction
  • Blacklisting
  • Exclusion
  • Harassment

Workers must document any adverse actions they experience to help strengthen their claim.

3. The adverse action was the result of the protected activity

This is the most challenging factor to prove when pursuing a retaliation claim.

Workers must prove that there is a direct connection between the protected activity, such as reporting sexual harassment, and the adverse employment action. Essentially, they must prove that the adverse action is a punishment for engaging in protected activities.

There are a few reasons this factor is often so difficult to prove, including:

  • Acts of retaliation in the workplace are often subtle; and
  • Employers might list other reasons for adverse actions.

It may be challenging to prove these three criteria, but it is not impossible. In cases of retaliation, it is often helpful for employees to consult an experienced attorney to understand how to prove their claim.