Workplace retaliation often manifests as subtle shifts in treatment after you report an injustice or support someone who has reported one. Regardless of the specifics, the law offers clear protections against unjust treatment. The challenge lies in proving it, which is why clear evidence is essential.
To bring you this article, we’ve partnered with Weisberg Cummings, P.C., a Pennsylvania employment law firm dedicated to protecting employees in Lebanon, Harrisburg, and beyond who report harassment and face retaliation. With over 40 years of combined experience, Weisberg Cummings has helped hundreds of workers seek justice and hold employers accountable. With their advice, you’ll learn whether you can sue for retaliation after reporting harassment, how to build a strong case, and the next steps you should take.
Can I Sue My Employer for Retaliation After Reporting Harassment?
In many cases, yes. If your employer took adverse action against you after you reported harassment — or supported someone who has — you may have grounds for a retaliation claim. Employees are protected under federal laws, which prohibit retaliation against them.
What Legally Constitutes Workplace Retaliation?
Workplace retaliation occurs when an employer punishes an employee for engaging in a protected activity, which can cover filing or participating in complaints against discrimination, harassment, safety violations, or other untoward behaviors.
Understanding what qualifies as retaliation is the foundation of a strong case. To qualify as retaliation, these elements must be present.
Engagement in a Protected Activity
A protected activity is any legally safeguarded action an employee engages in. The law protects a worker’s act of speaking up against unfair or unsafe practices. Examples include:
- Reporting harassment, discrimination, or safety violations
- Requesting accommodations for medical needs or disability
- Participating in internal or external investigations
- Supporting another employee’s report
Adverse Employment Action
While firing someone for complaining is an act of retaliation, there are other, more subtle ways this can happen. Retaliation includes any employer action that would discourage an employee from exercising their rights.
It may involve:
- Cuts in pay or hours
- Sudden switch to unfavorable shifts
- Being passed over for promotions despite being qualified
- Undeservedly negative performance reviews
- Increased scrutiny or micromanagement
- Exclusion from key meetings and decision-making processes
Identifying sudden shifts in tone, behavior, or expectations that begin after the protected activity’s occurrence can help build a case to prove workplace retaliation.
Causal Connection
It is necessary to prove the link between the protected activity and the adverse action. Strong workplace retaliation cases show the employer acted because of your complaint, and not due to a valid business reason.
Since employers will rarely admit to retaliation, you can establish this connection by paying attention to timing, inconsistency with everyday practices, or the treatment of other employees, or outright hostility.
A clear, organized narrative with adequate evidence can strengthen your claim.
Your First Steps After Suspecting Retaliation
Once you suspect retaliation, it’s crucial to act immediately. What you do in the early stages can affect the strength of your case.
Documentation is the most important step. It provides a factual record that helps establish timelines, suspicious actions, and potential connections. A personal log, along with some supporting documents, can create a clear picture of the events and their impact on your job and well-being.
Another potential step would be reporting your observations to human resources. However, the soundness of this decision depends on your workplace culture and the nature of the issue.
If you work for a medium to large-sized company with clear policies or if your human resources (HR) department has a positive track record of handling complaints professionally, it may be beneficial to request their assistance. However, if HR is closely aligned with leadership, or if confidentiality isn’t guaranteed, proceed with caution.
Internal reporting helps establish a paper trail, but if the environment feels unsafe, it’s best to consult an attorney before opening up internally to your workplace.
Essential Documentation to Support Your Case
To create a compelling workplace retaliation case, ensure that you cover as much relevant information as possible, including the following categories.
The Protected Activity
Document any details relevant to your protected activity, like copies of any harassment or discrimination complaints, incident reports, or follow-up communication. If you didn’t make the report directly, include your communications with the person who did. The protected activity is the starting point from which you can assess retaliation.
Timeline of Events
A timeline is a clear way to show a pattern. Retaliation that occurs shortly after you report harmful behavior can be suspicious.
Be as comprehensive as possible. Include observations and patterns that date back to before the protected event and continue after it.
Say you consistently received positive feedback and had everyday workplace responsibilities and interactions, but these changed after you reported a manager or co-worker for harassment. These observations can show a link between the protected activity and the retaliation.
Record the date, time, people involved, and potential witnesses to the incident.
Communications
Preserve all relevant communications, which can include the following:
- Emails
- Text messages
- Voice messages
- Direct messages on workplace platforms
- Memos or written announcements
If some of these messages are stored in your work account, forward them to a personal email address to maintain access to them. Take screenshots of other electronic communications, including time stamps.
Avoid documenting proprietary information or company secrets, as this may violate your employment contract or confidentiality policy.
Documenting Verbal Exchanges
Even if your employer is careful not to put anything questionable in writing, verbal comments can still add to your case. Document verbal conversations by writing down who was present, what was said, as well as the tone of voice and potential responses.
Take notes immediately after the interaction. Courts may consider contemporaneous notes as credible, especially when consistent with other evidence.
Best Practices for Documentation and Gathering Evidence
These strategies can help you effectively collect and build evidence to strengthen your case.
Use Secure Storage Solutions
Store your records in a location where your employer cannot access them. Use a personal device or account, external hard drives, or secure cloud storage. Avoid using your work email or company-issued devices, as your employer may monitor those systems.
Stay Factual and Objective
Your notes should read like neutral observations with minimal emotional reactions. Record exactly what happened, who was involved, and what people said. Avoid making assumptions or interpretations. Factual documentation can carry more weight and prevent your employer from arguing that your claims are exaggerated.
Be Consistent
Document incidents as soon as possible after they occur to preserve accuracy and consistency. Recollections of distant events may still hold weight, but they can be easier to disprove. A steady record of events strengthens your credibility and helps you and potential investigators build a clear narrative.
Ensure Comprehensive Documentation
Even minor incidents may prove significant in the long run, especially if they become part of a larger pattern. Comprehensive notes provide you with more information to work with and potentially a stronger case.
Next Steps: What to Do to Protect Your Rights
Once you’ve identified retaliation, it’s essential to remain cautious and take necessary steps to ensure your legal and professional safety.
Aside from documenting your situation, consult an employment attorney, especially if you don’t trust your employer’s HR department. A law firm, such as Weisberg Cummings, for those in the Lebanon area, can help you avoid missteps in the process of suing for retaliation after reporting harassment. They can guide you on how to protect key evidence, build your case, and determine the best strategy.
Strengthen Your Case
Building a workplace retaliation case requires strategy, organization, and clarity. Consistent and accurate documentation can strengthen your position. Retaliation is unlawful, and you have the right to stand up for yourself without fear of punishment if you’ve been wronged. With the right evidence and support, you can protect your rights and your career.
