How to Prove Workplace Retaliation

Proving a workplace retaliation case in court almost always requires looking at indirect evidence of retaliation, since direct evidence - i.e. an employer's own admission that they retaliated against you - is almost never available. Luckily, the California courts have articulated over the years a number of indirect or circumstantial ways in which an employee can prove his or her retaliation claim:  

• Proximity in Time between a Protected Activity and Termination/Retaliation. One of the first signs of possible retaliation by the employer is the timing of the retaliatory act, such as termination, relative to the protected activity in which an employee engaged. While there is no bright line rule regarding how close in time the protected activity should be to the alleged retaliatory act, if you have been demoted or suspended within weeks of engaging in a protected activity, such as filing a workers comp claim, complaining about harassment or discrimination, complaining about safety violations, etc.., this will generally support at least an inference of retaliation. Of course, the longer you worked for the employer, the easier it would be for you to use a not so perfect timing to you advantage. For instance, if you worked for the company for 15 years and have been terminated within 3 months after complaining about discrimination without having significant problems at work before, this timing will be much more helpful to you than to an employee in the same situation, who has only been employed with the company for a few months. Although many courts hold that timing alone will not prove a retaliation claim, this is usually good start and a sign for many attorneys who are looking at your case, that it's worth investigating your claims further. 
• Statements Suggesting Retaliatory Animus Toward You. Managers often make damning statements orally or in e-mails that show their retaliatory mindset, including questioning an employee's loyalty to the company. "I can't believe you are testifying on his behalf. I thought you were on our side" Or - discouraging an employee from complaining "You know, complaining is not exactly going to help your career around here" or "I thought you this was a prior injury. Why are you filing a workers comp now?" Or, suggesting that it's time for your to retire because of your age - "We need fresh blood" / "You are not as sharp and fast as you used to be." It's possible that your co-workers overheard statements made by the managers about how they want to get rid of you in so many words, and it's well worth securing those employee witness statements to further support your case. 
• Drastic Change in Performance Reviews. If you have a history of receiving good performance reviews up until when you engaged in a protected activity, and then right after- you started receiving negative reviews or warnings, this could also help prove retaliatory motive on the employer's part.   
• Being Disciplined More Harshly Than Others. If you are able to show that you have been terminated for the exactly same violation that other employees routinely only receive a warning for or are not disciplined at all, this can also help prove retaliation. For example, if you are terminated for being 15 minutes late shortly after engaging in a protected activity, while the employee has never gave you or others trouble about such tardiness before, this can also suggest a retaliatory mindset on the part of your employer. Because an employer who wishes to retaliate against an employee  is looking for any petty reason to get rid of that employee, this kind of evidence is well worth looking, as it's often can be found.   

As noted above, proving a retaliation case requires careful analysis of chronology of events as well as gathering corroborating evidence to support your side of the story, as these kinds of claims so often involve the he-said-she-said situation.