What makes a strong retaliation case?

By Genevieve Carlton, Ph.D.

What makes a strong retaliation case? An employment lawyer weighs in.

If you experience retaliation at work, you need to know what makes a strong retaliation case. Clear evidence of retaliation can mean a larger recovery for victims.

A strong retaliation case includes a direct link between the protected activity and the retaliation. Consider this example: you tell your boss not to sexually harass you and he fires you on the spot. Or you contact a supervisor about unpaid overtime and they immediately suspend you.

You’ll also need to show that you engaged in a protected activity. Records of emails, texts, or conversations about the protected activity will strengthen your case. Filing a retaliation lawsuit can help you recover damages. 

Drawing on decades of experience as an employment lawyer, Charles Joseph explains what makes a strong retaliation case.

In my experience, a clear retaliation case can be worth 2-3 times what the same discriminatory termination would be worth.

-Charles Joseph, NYC Employment Attorney

What makes a strong retaliation case?

Retaliation is the most common type of workplace discrimination. Yet what makes retaliation easier to prove than other forms of discrimination? According to Joseph, the law is on the side of workers when it comes to retaliation. 

Proof of Retaliation

Proving retaliation is often easier than proving discrimination or other employment violations. As Joseph explains, “discrimination or sexual harassment may begin subtly and the pattern may be easier to disguise. Retaliation can almost always be easily pinned on having begun after your complaint of discrimination.”

Consider an employee who complained to HR about workplace discrimination. If the company fired the employee right after their report, that can prove retaliation.

Retaliation can also be more subtle, Joseph explains. “Before your complaint you had consistent good feedback. You complain and all of a sudden there is a pretextual criticism of your performance. Often the cause and proximal effect are obvious and easily proven.”

What is retaliation? Check out our FAQ on retaliation to learn more.

Protected Activity

Your employer cannot retaliate against you for a protected activity. That includes reporting discrimination or harassment and blowing the whistle on illegal or unsafe practices (and in New Jersey, unethical conduct). It’s also illegal to retaliate against you for testifying in an investigation against your employer, complaining about wage theft, or asking for a disability or religious accommodation.

A retaliation lawsuit does not require you to prove your underlying complaint. What does that mean? “You don’t have to be right, just honest,” Joseph explains. “If you complain reasonably and in good faith that you were discriminated against and your employer retaliates, even if you were wrong – their actions actually weren’t because of discrimination – you still win.”

“It’s prohibited to take action against an employer for complaining about discrimination even if the discrimination never happened so long as your allegations, had they been true, would have been discriminatory.”

Types of Evidence

A strong retaliation case can rest on many different types of evidence. For example, your testimony and documentation can prove retaliation. 

Close timing between your protected activity and the retaliation also serves as evidence. If you can document when you complained about discrimination, for example, and when your employer retaliated, that can convince the court (or your employer’s defense attorneys) that you experienced retaliation.

Witness testimony, emails, text messages, and other forms of evidence can also strengthen your case. If, for example, your employer treated you differently than other workers who did not engage in a protected activity, that supports your claim. 

Finally, proving that your employer lacks a non-retaliatory reason for punishing you also strengthens your retaliation case.

How much can you sue for retaliation?

How much is a retaliation lawsuit worth? It depends. “In my experience, a clear retaliation case can be worth 2-3 times what the same discriminatory termination would be worth,” Joseph says. 

Exact amounts depend on the facts of your case, the type of retaliation, and your damages. For example, if you were wrongfully terminated, you can sue for a higher amount. If the retaliation was particularly shocking, that can also mean a higher value for your lawsuit.

Employment lawyers negotiate settlements strategically. “Usually the better practice is not to name a number – you don’t want to box yourself in,” explains Joseph. “You want to be able to ask for more if you learn of more bad facts. If your case turns out to be less strong than you thought initially you want to be able to start with a lower demand; an initial demand too high for the facts puts you in the weak position of bidding against yourself.”

What is the average settlement for a retaliation lawsuit?

The average settlement for a retaliation lawsuit depends on the facts of the case. “The average settlement for retaliation is calculated as a period of time,” according to Joseph. “For instance, a strong but routine case may be ‘18 months,’” meaning the victim receives the equivalent of 18 months of pay. 

Retaliation settlements factor in back pay, lost wages, emotional distress, and attorneys’ fees. Joseph, for example, works on commission, meaning his clients do not pay unless he recovers money for them.

“The actual monetary value of cases is usually a function of how much you were making before termination,“ Joseph relates. “While unfair, highly paid people recover more money than  less well compensated people.”

Retaliation settlements can be higher than other types of workplace discrimination. “Retaliation cases often result in higher awards than standard discrimination cases because they are easier to prove and the employer has more to fear,” says Joseph. 

The person behind the retaliatory decision can also impact settlement amounts. “Discrimination is often committed by a supervisor just above you,” Joseph says. “The power to retaliate often rests with more senior actors resulting in higher settlements as employers fear the publicity of a senior executive’s bad acts being exposed and because the offender will usually be terminated if the bad conduct becomes public. Companies value their senior executives and don’t want to be forced into firing them.”

Filing a retaliation lawsuit can help you recover damages – and it can also protect future employees from retaliation by incentivizing employers to treat workers fairly. 

Do you have a retaliation case? Find out today by filling out our free case evaluation form. 

Charles Joseph has over two decades of experience in employment law. He is the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $200 million for clients, and the creator of Working Now and Then.

Contact Charles Joseph to find out if you have a retaliation lawsuit.