Friday, January 23, 2009

Proving Retaliation

If you are under attack at work, it’s critical that you have a complete and thorough record of every action taken against you by a supervisor, manager, coworkers or your employers--as a whole. You should also have a record of performance evaluations and other performance-related feedback, policies contained in the personnel manual, and other information.

When it comes to compiling evidence that supports your claims of workplace mistreatment and abuse, you should think in terms of direct vs. circumstantial evidence. Direct evidence is the best evidence to have because it is the most blatant and undeniable form of proof. An example of direct evidence is being told that you are not being promoted because you are Black or having your boss give you a memo stating that you won’t be given an opportunity to manage other staff because of your race. Direct evidence involves someone making it blatantly clear that your race is one of the factors or the sole factor in how they are treating you in the workplace.

Most people are too savvy to provide a target with direct evidence of discrimination, harassment or retaliation. But, it does happen. More often than not, a racist will simply find other ways to hide the racially motivated reasons for their actions. For that reason, it’s more likely that you will have circumstantial evidence of race-related discrimination, harassment, retaliation, etc.

Let’s look at how you might prove a circumstantial case of retaliation (retaliation for complaining about race-based abuses at work). According to the EEOC, a violation is established if there is circumstantial evidence raising an inference of retaliation, if your employer fails to produce evidence of a legitimate, non-retaliatory reason for the challenged action (firing, demotions, suspension, transfer to a hard to reach location, being stripped of assignments, harassment, retaliation, etc.) or if the reason provided by your employer is simply a pretext to hide the retaliatory motive.

If you file a complaint against your employer, internally or externally, alleging discriminatory practices, retaliation, etc. and you suddenly become targeted with adverse actions like increased surveillance and heightened scrutiny, unjustified negative performance evaluations, denial of a promotion, suspension or other negative actions, you can link the timing of when you filed your complaint with the onslaught of abuse by your supervisor, coworker or employer.

Circumstantial evidence can come in many forms, but as you gather information that proves your point/position, you also want to collect evidence that disproves/refutes the case being made by your employer. Your employer has likely given you reasons for taking certain actions with regard to your employment. For instance, unjustly demoting you, denying you a promotion or firing you. You need to show that the reasons given by your employer are nothing but a pretext/excuse to hide their true motives, which you believe are racially-based.

You need to do two things: (1) Prove your case with an avalanche of circumstantial evidence or direct evidence; and (2) Prove that the justification provided by your employer is nothing more than a misrepresentation of facts and/or outright lies to hide their race-related motivations!

You have to be strategic. You have to think about all of the evidence that would prove, to a complete stranger, that your position is valid. Pretend that you will have to speak to a two-year old. Don’t assume someone is going to have an instant understanding of your position. Keep your arguments simple and break down all of the relevant points.

Remember, you are looking to highlight actions that directly or indirectly show potentially illegal mistreatment. Keep the word "inference" in mind because circumstantial evidence provides an inference of illegal behavior.

7 Comments:

Blogger rico said...

I was denied a promotion that I was the best candidate for. I have an email "explanation" citing the racial preference of workers as the basis for refusal.

further the manager took great pains to block my application for the position.

The kicker is the employer I work for is the only one allowed to police itself on EEO complaints.

As such, since my case is ironclad-they just hunker down and delay delay delay.

thank you for letting me vent.

3:21 PM  
Anonymous Anonymous said...

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7:43 PM  
Anonymous tcunning said...

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7:45 PM  
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7:49 PM  
Anonymous time 4 justice said...

I was denied a promotion of $1.18 because of budget restraints, however two white people were placed into their positions ($80,000 & $25000) on the same day I was told my position is on hold because of budget restraints. Since then others have been placed into positions on budget restraints. Things we go through.

10:46 AM  
Anonymous Anonymous said...

I was told by my employers when they were asked "why should we hire him back if he thinks were racist and an racist organization" The also sent and email to HR stating " I have an employee with an history of filing EEO complaints and this is coming to an halt".. They also had me removed from my job for complaining about their involvement in my EEO complaint I was suspended for 10 days, when i returned they had email my co workers and told them to tell them when I leave and whom I'm talking to because I'm filing EEO complaints without permission.

10:13 PM  
Blogger l said...

i was fired 2011 they claim i rolled my eyes, my black body language is offensive and mumbled under my breathe. i filed discrimination case against them 2010, human right took whole year to give answer. what was around middle of oct. By oct 25, 2011 i demanded down to HR disscuss passed in investigation that have been investiagted and close, now all sudden jules taylor and daniel szulkin what discuss things that have been closed already.

8:53 PM  

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