The Workplace Retaliation Trap: Employers Set It. WE Cash in! EEOC Topics

Hi guys, welcome back. I was talking with attorney Vincent P. White on his YouTube channel recently and he mentioned a phrase that I hadn't heard before, the retaliation trap. The context was that a lot of attorneys don't take the retaliation trap into consideration when they're thinking about how much our case could be worth. When he first said it, I pictured the retaliation trap as an actual trap that we set for our employer to trip into. But what he was talking about is if we keep working for our employer after we file a discrimination claim against them, chances are they're going to retaliate. We don't have to set the trap. They'll do that for themselves. Now, while a retaliation claim isn't exactly a blessing, it can be easier to win than some other types of claims and it can be worth more too. Retaliation often involves things that hit us in the bank account like firing or demoting us and that kind of damage can add up really fast. Because retaliation is intentional behavior in the private sector, it can also open the door to punitive damages. In both the private and federal sectors, intentional behavior tends to be seen as more egregious and that can bump up our damages as well. Because we've all experienced retaliation at one time or another, judges and jurors can empathize with it more easily than they can empathize with some other types of claims and that can make them more sympathetic, which can also result in more damages. And that empathy can also make it easier for us to win because they know retaliation happens and they know what it looks like, which isn't always true for other types of discrimination claims. Proving a retaliation claim can also be easier than proving a discrimination claim. Let's say two people are mean to me. The first one is mean because they have negative biases against people with my gender or some other protected trait. That's discrimination. To win a discrimination claim, we're going to have to show that our employer had those negative biases in the first place. The best way to do that is with direct evidence of those biases like witness statements or emails where they're actually expressing them. Getting that direct evidence can be tough because in most workplaces, managers know that they're supposed to keep their negative biases hidden. They may tell us all about it in private, but there probably won't be any witnesses or a bunch of emails they wrote about it. That lack of direct evidence can make it really hard for us to prove discrimination. Of course, there are workplaces where the negative biases are all out in the open and getting direct evidence can be easier in that type of environment because there probably will be witnesses and emails, but we still have to get our hands on those emails and get the truth out of those witnesses, which doesn't always happen. Now let's look at the second person who was mean to us. They did it because we told on them and they want to get us back. That's retaliation. Proving retaliation can be easier. Basically, we have to show that we told on them, participated in protected activity, that they were mean to us, we suffered an adverse action, and that they were mean to us because we told on them. As long as we put all our complaints in writing, we'll be able to prove that we participated in protected activity with direct evidence because it'll be documented. Often employers document thing two for us, at least to some extent. There will usually be some kind of record if they fire or demote us. The good news is we don't have to prove thing three with direct evidence. We can use circumstantial evidence for that. If they started being mean to us shortly after we complained about them, that's temporal proximity, and it strongly suggests that things one and two are connected. Of course, there are other ways we can establish causation, but temporal proximity is very common, fairly simple to establish, and it works. We just have to document our timeline. What we did, what they did back to us, and when those things happened. Nobody wants to be the victim of retaliation. It can be really hard to put up with being intentionally harmed when all we did was stand up for our rights, but knowing the retaliation trap is real, and that when our employer is retaliating, they're handing us another claim that might be easier to win and worth more to, that can soothe the pain a little bit. Next week, we're going to talk about some common ways that employers try to defend themselves against retaliation claims, and what we can do to fight back. You don't want to miss that, so subscribe, and hit the notification bell. I'll see you guys next time. Until then, take care, and hang in. Fight smart, and hang in to win.