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prove-workplace-retaliation

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. 

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Law Office of Arkady Itkin - San Francisco & Sacramento Injury and Employment Lawyer
We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. We all represent businesses and start-ups in a wide range of business and employment issues and disputes. 


57 Post Street, Suite 812, San Francisco, CA 94104; Tel. (415) 295-4730; Fax. (415) 508-3474; [email protected]
  • Home
  • Employment Law
    • Wrongful Termination >
      • At-Will Employment
      • Termination After Unfair Warnings and Write-Ups
      • Union Grievance, Workers Comp and Wrongful Termination
      • Labor Code 970 Claims
      • Promissory Estoppel and Employment Contracts
      • Implied Contract Claims
    • Discrimination >
      • Proving Discrimination
      • Age Discrimination
      • Disability Discrimination >
        • Protected Disabilities
        • Medical Leave / Disability Accommodations
        • Job Reassignment As A Disability Accommodation
        • SSI Disability Benefits and Your Court Case
        • Sample Request for Reasonable Accommodation
      • Pregnancy Discrimination
      • Race Discrimination
      • Sample Discrimination Complaint
      • DFEH and EEOC Investigations
    • Retaliation >
      • How to Prove Retaliation
      • Dealing with Retaliation While Still Employed
      • Retaliation for Complaining
      • Whistleblower Retaliation
    • Harassment
    • Defamation at Workplace
    • Prof. License Defense
    • Leaves of Absence >
      • Medical Leave as Reasonable Accommodation
      • FMLA Entitlement and Reinstatement to Work
      • CFRA Leave
      • Employers' FMLA Notice Obligations
      • Paternity Leave (FMLA)
      • Sample FMLA Leave Request
    • Wages / Overtime Claims >
      • Wage Claims
      • Employee or Contractor
      • Exempt / Non-Exempt >
        • Admistrative Exemption
        • IT Support Specialists Compensation
        • Computer Professional Exemption from Overtime
        • Recruiters / Account Executives Exemption
        • Complaining About Being Misclassified
      • Vacation Pay / PTO
      • On-Call Time Compensation
      • Deductions fr. Commissions
    • Unempl. Benefits Appeals >
      • Tips for EDD Phone Interview
      • Unemployment Benefits Appeal Hearing Representation
      • CUIAB Hearing Tips
    • Employment Law Blog
    • For Employers
  • Personal Injury
    • Five Tips For Injury Cases
    • Slip-and-Fall Injuries
    • Assault and Battery
    • Recorded Statements
    • Repairing Your Vehicle
    • Unpaid Medical Bills
    • Injury Law Blog
    • Medical Malpractice
    • Police Excessive Force
  • Practice Areas
  • About
  • Results
  • Submit Case
  • Contact
  • Resources
    • Consultations
    • Workplace Rights Checklist
    • Deposition Tips
    • Mediation Tips
    • Effective Mediator
    • Suing Current Employer
    • Severance Agreements
    • Workplace Investigation
    • Arbitration
    • Statutes of Limitations
    • Healthy Litigation Mindset
    • Trial Tips
    • Working Remotely
    • How To Find The Right Lawyer For Your Case