The Role of Temporal Proximity in Retaliation Cases

As an employee, you have an absolute right to assert your legal rights or to report wrongdoing by your employer. When an employee is punished at work by an employer for asserting rights that the employee has a legal right to assert, the employee may have a claim for retaliation.

What is Retaliation?

Just as the name suggests, retaliation is where an employer “gets back” at an employee for doing something the employee has a right to do. This may be where the employee reports illegal activity, makes a workers’ compensation claim, or reports sexual harassment to a supervisor.

Causation Problems

But here’s the problem that courts face: how does a court know that something that an employer does to an employee is really retaliation—that is, that the employee’s assertion of his or her rights are what caused the employer to punish the employee?

Most employers will say that if an employee is fired, or demoted, or passed on for training or professional opportunities, those decisions are made independently of anything the employee did. In other words, the employee’s assertion of his or her legal rights did not cause the employer to act as it did; the employer had separate, non-retaliatory reasons for making these adverse employment decisions.

Closeness in Time

One way that a court will see if, in fact, the employee’s assertion of rights lead to retaliation is the closeness in time between the employee’s assertion of legal rights and the punishment or retaliatory conduct. The closer that the employee’s assertion of his rights are to the punishment by the employer, the more likely it is that the punishment is actually retaliation for engaging in the protected activity or asserting the employee’s legal rights.

Inference of Causation

Of course, closeness in time doesn’t automatically mean that there was retaliation—but it’s pretty good evidence of causation when combined with other evidence. If the retaliation and employee conduct are very close, the employee may even get an inference of causation (and thus, retaliation), which the employer then has the burden of trying to disprove.

And many employers will try to show that the short amount of time between the employee’s protected activity and the alleged retaliation, is not indicative of retaliation. The employer will show that whatever caused the employee to be fired or punished, was happening long before the employee engaged in the protected activity.

Reporting Early

This is, by the way, why it is so important to report to your employer, whenever you feel you are being wronged—be it for unpaid wages, discrimination, harassment or anything else. Because if you wait, you give the employer time to find things against you that will predate whatever it is that you are reporting, when you actually do make the report.

Proving discrimination and retaliation isn’t easy. Let us help. Contact the San Jose employment law attorneys at the Costanzo Law Firm today.

Sources:

eeoc.gov/retaliation-making-it-personal

scholar.google.com/scholar_url?url=https://core.ac.uk/download/pdf/71454814.pdf&hl=en&sa=X&ei=TpsfZ43GDMe16rQPu7GT0QQ&scisig=AFWwaeYRE7OQnn44PXM8HUpKpsa_&oi=scholarr