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EMPLOYMENT LAW GUIDE: - page 19 / 134





19 / 134

Many employment statutes contain anti-retaliation provisions, which prohibit an

employer from punishing an employee for having complained of unlawful conduct or

participating in an investigation of unlawful conduct. In order to prove a retaliation claim,

the employee need only show (i) the employee engaged in legally protected conduct (such as

opposing sexual harassment, filing a complaint, assisting in an investigation of another’s

complaint); (ii) she suffered an “adverse employment action” (such as a demotion, cut in pay

or termination or any action against the employee that “might well have dissuaded a

reasonable worker from making or supporting a charge of discrimination”); and (iii) a causal

connection exists between the protected conduct and the adverse action.

Retaliation claims are among the fastest growing claims and are often easier to prove

than the underlying discrimination claim. Therefore, employers must be mindful of how they

treat employees who complain or file discrimination claims, even if the initial complaint is

without merit. There are many forms of protected conduct. Employers generally cannot

punish employees for (i) complaining of or opposing unlawful practices (such as

discriminatory conduct, harassment, or unsafe working conditions); (ii) testifying or

cooperating in any governmental investigation into potentially unlawful conduct; and (iii)

aiding another in complaining about potentially unlawful conduct. Employers also need to

respond promptly and objectively whenever retaliation claims are raised.


Military and Other Uniformed Services

Discrimination is prohibited against persons who perform or apply for voluntary or

involuntary duty in a uniformed service under competent government authority. Both state

and federal law prohibit denying employment, reemployment, promotion, or any benefit

because of military service or an application for military service. Retaliation because of the


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