United States federal law prohibits employers from discriminating against employees on the basis of race, gender, national origin, religion, age, and disability. It also prohibits employers from associating with employees who report discrimination to the company, file a discrimination complaint with the Equal Employment Opportunity Commission, or participate in an investigation of claims of discrimination against their company. Unfortunately, many employers violate these laws and fire, suspend, or demote employees in violation of these retaliation laws.

If your employer has taken any action against you that you believe may be retaliation, you should consider the following factors to help assess whether you can legally prove a retaliation claim:

How long have you been with your company?

The longer you have been successfully employed by your company, the more likely it is that your company’s claim of poor performance on your part is false. Think of it this way. If you had twenty years of raises, bonuses, and no reports, then you complained about discrimination and a month later, for the first time in your career, you received a poor performance review, that’s a good sign of retaliation. Contrast that with an employee employed for less than a year with no prior history of success with the employer. In the latter case, the employer will likely be in a stronger position to defend a claim of poor performance.

What is your company’s written record regarding alleged performance deficiencies?

Companies, now more than ever, are getting smarter about creating a written record of an employee’s shortcomings to lend credibility to a claim of poor performance. If his company suddenly claims that he should be fired for poor performance, if he had no prior warnings, writing, or discussions about the alleged shortcomings, this could be a telltale sign of retaliation. Think of it this way: High turnover is costly for a business and going through the hiring process and training new hires is a huge expense. Therefore, employers generally don’t like to fire employees if they can fix performance issues first.

Were there other employees who had the same deficiencies who were not disciplined?

In retaliation cases, a court not only looks at what you allegedly did to get you disciplined or fired, but also reviews the performance and work habits of employees in a similar situation to you at the same company. For example, if all the accounting clerks made the same kind of mistake, but you, the only one who complained about discrimination, got demoted, that looks suspicious.

Should have been terminated versus would have been terminated.

Remember, the issue in retaliation cases is not whether you should have been fired. Many employees should be fired, but not for a litany of reasons. Perhaps the employer is not in a position to hire a new employee. Perhaps the employer would rather have a poor employee than take a chance on someone new. Or maybe the employer was willing to live with an employee who had some shortcomings as long as he wasn’t a troublemaker. The real issue is why the employer took the action against him and whether the employer actually would have fired him had it not been for his discrimination complaint.

If you believe you have been a victim of retaliation, it is best to have your case evaluated by an attorney who focuses on this area of ​​the law. Retaliatory wrongful termination is illegal.