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Adverse Employment Action – How To Spot It & What To Do

The concept of wrongful termination is commonly discussed when discussing employer retaliation. However, there are multiple different ways by which an employer can act against you as an employee without firing you or forcing you to resign; these are referred to collectively as adverse employment action. It can be difficult to identify when behavior is routine and when it is truly retaliatory, but it can be done in most cases, with the caveat that each employer is its own individual entity.

Three Factors Alleging Retaliation

If you eventually decide to file suit or bring a charge of retaliation with the Equal Employment Opportunity Commission (EEOC), you must show that three criteria are present. You must show that (1) you engaged in protected activity, (2) your employer acted against your interests, and (3) that action occurred directly because of your protected activity. Protected activity is fairly well defined by EEOC guidance and federal law; the most common examples of such activities are whistleblowing and participating in any kind of investigatory action against the employer. Some employers try to limit the scope of what constitutes protected activity, which is inherently unlawful in itself.

It is also generally easy to define adverse employment action. Anything that can be called ‘materially adverse’ to an employee’s interests might be taken as retaliatory, depending on the specific facts of the situation. If the action might deter a reasonable employee from engaging in the protected activity in question, or from filing a complaint about the retaliation itself, Title VII is broad enough to interpret most such actions as retaliation unless shown otherwise.

Establishing A Causal Link

The most difficult part of proving a retaliation case is establishing a link between your activity and your employer’s negative action. It is very easy for an employer to state that a certain event occurred due to your poor job performance, or due to internal reasons alleged to have nothing to do with your protected activity. The most convincing evidence of retaliation can sometimes look extremely subjective, meaning that a “he said, she said” situation could result.

It is worth noting that in South Carolina, the law only specifically states that employees are protected from retaliation in certain enumerated situations – namely, because they filed a charge or suit alleging discrimination, complained to the employer or higher authority about discrimination on the job, or participated in an employment discrimination proceeding. Other instances of protected activity may receive less protection under state law than they might under Title VII and other federal regulations. Be advised of this when investigating the feasibility of bringing suit under state law, or filing a complaint with the South Carolina Human Affairs Commission.

Consult An Experienced Attorney

Standing up for what is right can be scary. If you experience adverse employment action or any other unfair treatment, you may be entitled to compensation. Attorney A. Christopher Potts and his North Charleston employment law firm are well versed in these cases and would be happy to try and assist you with yours. Contact the office today to set up an initial appointment.

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