Martin D. Haverly, Attorney at Law
302-529-0121

How do you prove wrongful termination in retaliation?

When employees report discrimination or blow the whistle in the workplace, they have specific rights under federal and Delaware laws. These protections forbid retaliation.

Unfortunately, that does not stop employers from retaliating against employees or firing them. But how can employees prove that their employer terminated them wrongfully?

There are three critical factors that employees must prove in these cases:

1. You engaged in a protected activity

First, it is important to note: It is a challenge to prove retaliation occurred. It is often subtle, so employers can avoid lawsuits.

However, the first step requires employees to establish that they participated in an activity protected by law. These actions include:

  • Reporting unethical behavior
  • Filing a sexual harassment claim
  • Reporting discrimination against a protected class
  • Participating in any process with the Equal Employment Opportunity Commission (EEOC)

Providing the report can be incredibly helpful to prove wrongful termination.

2. Were there any other actions of retaliation?

Termination is the most common form of retaliation by far. However, there are many other kinds of retaliation, including: 

  • Demoting employees from their position
  • Decreasing an employee's pay for no reason
  • Harassing the employee at work
  • Isolating the employee from meetings or events
  • Giving employees poor performance reports that do not match their work
  • Blacklisting the employee from obtaining future employment

Employees should keep a detailed record of these acts. This evidence of retaliation will only strengthen their wrongful termination case.

3. There is a connection between your action and the termination

This is often the most challenging factor to prove. Employees have the burden of proving this connection, and employers will often deny any existence of one.

Employees should consider a few things to prove the correlation between the two activities, including:

  • When both the protected activity and the termination occurred
  • Whether the employer knew about the protected activity
  • If the employer retaliated against other employees in similar situations

This is precisely why employees need to document any retaliation they endure. For example, if an employer cites poor performance as the reason for termination, employees might have the evidence they need to refute that claim in their records.

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Martin D. Haverly, Attorney at Law
Brandywood Plaza, 2500 Grubb Road
Suite 240-B
Wilmington, DE 19810

Phone: 302-529-0121
Fax: 302-529-1123
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