proving retaliation

should an employee have to prove they were treated unfairly before they can prove that they were reataliated against by being discharged for engaging in the protected activity of complaining of unfair treatment?

1 answer  |  asked Aug 6, 2010 11:31 AM [EST]  |  applies to Arizona

Answers (1)

Francis Fanning
Your question seems to assume that complaining about unfair treatment is protected activity. It is not. Complaining about unlawful discrimination is protected, but a complaint about generic unfair treatment that does not amount to a complaint of unlawful discrimination based upon sex, race, religion, color, national origin, age or disability is just a complaint.
Assuming you complained about unlawful discrimination, you are protected as long as you had a good faith belief that the events of which you were complaining amounted to unlawful discrimination. You do not have to prove that the treatment actually rose to the level of unlawful discrimination. But your belief has to be reasonable. The mere fact that you believed it to be unlawful discrimination is not enough. For example, I once had a client who complained about her manager's offensive language, that included extensive use of the "f" word, not in a sexual way but as an adjective - e.g. "You guys need to get your f***ing sales up." When she sued after being fired for complaining, the court dismissed her lawsuit, holding that mere vulgarity does not amount to sexual harassment, and no reasonable person could believe that her complaint about vulgar language amounted to a complaint of sexual harassment.
In order to get a more focused answer, you should probably consult with an attorney and give the specific complaints you made, what they were based upon and what the employer did in response. There are other forms of wrongful discharge based upon retaliation for such things as whistleblowing, refusing to engage in unlawful conduct or insisting upon engaging in certain protected conduct such as service on a jury, military service or making a worker compensation claim. There are also unfair labor practices based upon complaints about working conditions that are made by or on behalf of more than just yourself. These kinds of claims have specific requirements and procedures that call for the advice of an experienced employment attorney.

posted by Francis Fanning  |  Aug 6, 2010 3:17 PM [EST]

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