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How to Prove That an Employer Is Unlawfully Retaliating?

New Jersey’s retaliation attorneys at Lenzo & Reis know how to prove when New Jersey workers are illegally retaliated against. While there are two ways of proving unlawful workplace retaliation, the most common method is used when there is no direct evidence of illegal workplace retaliation. That method of establishing unlawful workplace retaliation was established by the Supreme Court of the United States in McDonnell Douglas Corp. v. Green and is, not surprisingly, known as the McDonnell Douglas burden-shifting method. The second method, which was set forth by the Supreme Court of the United States sixteen years later in Price Waterhouse v. Hopkins, is used in those rare instances when direct evidence of retaliation exists.

How to Prove Unlawful Retaliation in the Absence of Direct Evidence?

As you can probably guess, most employers do not admit when they unlawfully retaliate so, unlike tv shows, there is almost never smoking gun evidence of illegal retaliation. That is a fact expressly recognized even by the Supreme Court of New Jersey in 2005 in Zive v. Stanley Roberts, Inc. It is for that reason that while the occasional existence of smoking gun evidence is a pleasant surprise, such evidence is not required to successfully make out a claim of retaliation.

In the absence of such obvious evidence, courts have provided New Jersey employment attorneys with a roadmap for how to prove unlawful retaliation. That roadmap involves a series of steps. In the first step, employees must show that they engaged in protected conduct that is known to the employer. That means that an employee must not only show that he or she complained about, objected to, filed a complaint about, testified about any protected conduct described on the various retaliation pages of our website, but that his or her employer knew about the protected conduct before taking retaliatory action. Why is that? Well, the answer is as much common sense as it is legal. It is because the very definition of the word retaliation means an action is taken in response to something else. In fact, Miriam-Webster defines “retaliate” as getting like for like or getting revenge. After establishing the existence of protected conduct, an employee must then show that she or he was subjected to an adverse employment action or a hostile work environment. While many different things qualify as adverse employment actions, they generally include actions affecting pay or resulting in economic harm, such as being denied a promotion or being demoted or fired. The New Jersey Supreme Court in Victor v. State, however, also made clear that various actions that may seem insignificant on their own may, when viewed together, be enough to constitute an adverse action. Next, the employee is required to show a connection between his or her opposition, aid, and/or encouragement and the adverse action. The New Jersey Appellate Division and Supreme Court have made clear that that connection can be established by timing, such as an adverse action that occurs shortly after an employees’ protected conduct, or other factors that justify a finding of retaliation.

Once the employee has shown proof of those steps, the employer must explain why the action it took against the employee was legitimate instead of retaliatory. Once the employer offers a legitimate reason for its action, the employee must show that the employer’s reason is not the real reason for the employment action but, instead, just a cover-up (or pretext) for retaliation. While that may sound impossible to do, it is really not as difficult as it sounds. That is because New Jersey courts have made clear that to do so, employees need only provide some evidence that would lead a jury to reasonably disbelieve the employer’s legitimate business reason or believe that retaliation was more likely than not one of the reasons that motivated the employer’s decision. After all of those steps are taken, a jury will usually determine whether it believes the employee or the employer.

How to Prove Unlawful Retaliation When There Is Direct Evidence?

As you can probably guess, proving unlawful retaliation when there is direct evidence of retaliation, such as an employer telling you that it fired you because you complained about discrimination, is somewhat easier to do than without such direct evidence. In a case where there is direct evidence of retaliatory intent, that evidence leads to a logical suggestion that retaliatory bias motivated the employer’s decision. When that happens, the employer has to meet a higher burden requiring it to not only show, but to actually convince the judge or jury that it would have taken the same action even in the absence of an intent to retaliate. Obviously, proving a retaliation claim is a little bit easier when there is direct evidence, meaning smoking gun evidence, of an intention to unlawfully retaliate.

What to Do If You Aren’t Sure If You Are Being Unlawfully Retaliated Against at Work?

New Jersey’s employment retaliation lawyers take the position that knowing is half the battle. So the first thing you should do if you think you are being unlawfully retaliated against at your New Jersey workplace is call the unlawful retaliation attorneys at Lenzo & Reis so that we can get the facts necessary to determine if the conduct that you are being subjected to violates the law. If so, what happens next depends on different factors such as whether you are still employed by the retaliating employer or not and how you are most comfortable addressing the situation. That means different things to different people. For some people, we can be most helpful by guiding them through dealing with the retaliation on their own without being involved out in the open. That approach works for people who are still employed by the retaliating employer and either want to gather more evidence or just are not ready to make clear that they have retained an employment attorney. Other New Jersey workers are too scared to address their employers themselves and would rather have the illegal retaliation attorneys of Lenzo & Reis communicate directly with their employers about the unlawful retaliation at work. Yet others, want us to negotiate either an exit strategy if they have not yet been fired or a settlement if they have been fired or are about to be fired. Lastly, whether fired or not, some retaliated against New Jersey employees want us to file suit for them. Which approach is best for you and your situation depends on many different factors ranging from the strength of your case, the type of retaliation to which you are being or have been subjected, and even your own comfort level with how you want to pursue a claim of retaliation.

For those reasons, the only way to determine what your legal rights and protections you have to be free from unlawful retaliation is to call the New Jersey illegal retaliation attorneys at Lenzo & Reis, LLC at (973) 845-9922. If you want to contact us by e-mail instead of calling the firm, you can also click here. We have successfully represented thousands of New Jersey employees in workplace retaliation claims and recovered millions of dollars for our clients in various types of illegal retaliation cases. We can help you get the justice you need and deserve by providing the best legal help available to you in illegal retaliation claims involving your work.

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