Preparing for your deposition in an employer retaliation case

In anticipation of your deposition, your employment lawyer will meet with you to prepare you for this important event in your case. If your lawsuit includes a claim of employer retaliation, a key aspect of the deposition preparation session will be making sure you fully understand the legal concept of retaliation and the proof you need to prevail on this claim. An experienced employment lawyer will take the time to explain to you the following:

Federal and most state anti-discrimination employment laws prohibit retaliation against an employee who has engaged in “protected activity.” “Protected activity” generally consists of the following: (1) opposing a practice made unlawful by one of the employment discrimination statutes (the “opposition” clause); or (2) filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statute (the “participation” clause). In plain English, this means that it is against the law for your employer to retaliate (i.e., seek revenge) against you because you took steps to enforce your right to be free of workplace discrimination.

In order to win a retaliation claim, your employment lawyer will have to present evidence in support of four essential elements:

  1. First: That you engaged in protected activity; that is, that you asserted claims or complaints of discrimination prohibited by federal law;
  2. Second: That an adverse employment action (e.g., termination, demotion) then occurred;
  3. Third: A causal connection between the protected activity and the adverse action;
  4. Fourth: That you suffered damages as a result of the adverse employment action.

Perhaps the most critical prong of the retaliation claim is proving that you engaged in “protected activity.” While the protections of the “opposition clause” are triggered by complaining to your employer about discrimination, the subject of your complaint must be “discrimination.” A vague or ambiguous complaint about unfair treatment is not sufficient. Moreover, your complaint must be made in “good faith.” To establish “good faith,” your complaint must stem from an honest belief that the employer’s conduct was unlawful and your allegations and the evidence in the record must demonstrate that your belief, even if mistaken, was objectively reasonable.

The timing between the protected activity and the adverse employment action can be important evidence in proving the causation element. The closer in time these two events occur, the more likely a causal connection exists.

Here is a sample jury instruction that lays out each element you must prove in order for the jury to find in your favor on a retaliation claim:

Retaliation

The Plaintiff alleges that the Defendant retaliated, that is, took revenge against the Plaintiff because the Plaintiff had previously taken steps seeking to enforce the Plaintiff’s lawful rights under [describe the Act or Statute involved, e.g., Title VII of the Civil Rights Act.] You are instructed that those laws prohibiting discrimination in the workplace also prohibit any retaliatory action being taken against an employee by an employer because the employee has asserted rights or made complaints under those laws. So, even if a complaint of discrimination against an employer is later found to be invalid or without merit, the employee cannot be penalized in retaliation for having made such a complaint if you find that the employee made the complaint as a means of seeking to enforce what the employee believed in good faith to be [his] [her] lawful rights. To establish “good faith,” however, it is insufficient for the Plaintiff to merely allege that [his] [her] belief in this regard was honest and bona fide; the allegations and the record must also establish that the belief, though perhaps mistaken, was objectively reasonable.

In order to establish the claim of unlawful retaliation, therefore, the Plaintiff must prove by a preponderance of the evidence:

First: That [he] [she] engaged in statutorily protected activity, that is, that [he] [she] in good faith asserted claims or complaints of discrimination prohibited by federal law;

Second: That an adverse employment action then occurred;

Third: That the adverse employment action was causally related to the Plaintiff’s statutorily protected activities; and

Fourth: That the Plaintiff suffered damages as a proximate or legal result of such adverse employment action.

11th Circuit Pattern Jury Instructions (Civil Cases, 1999) §1.9.3.