Many people who make discrimination complaints to the EEOC feel like they have a target on their back. Their employers treat them differently and try to make them quit. Sometimes, employers make up excuses to fire people who complain of discrimination.
So is your employer allowed to fire you after you make a EEOC or DFEH complaint? It depends. Here’s what you need to know.
You Are Protected from Retaliation for Making Complaints of Discrimination
People sometimes think that, as “at-will” employees, their employers can fire them for any reason. This is wrong. Even at-will employees cannot be fired for illegal reasons. It is illegal for your employer to fire you for making a “good faith” complaint to the EEOC or DFEH. Your complaint counts as “good faith” if you believed the conduct you complained about was harassment, discrimination, or retaliation. This means you can be wrong about whether the conduct is illegal, but you are still protected from retaliation.
If you are fired after making a complaint to a government agency, your termination is likely to be illegal unless your employer had cause to fire you. Two ways to link your termination to your complaint including showing that (1) you were fired right after your complaint or (2) you were fired for minor or unfair reasons. Both of these fact patterns are common and can be strong evidence of retaliation.
How to Prove Retaliation
Skilled employment attorneys prove retaliation by showing that the employee’s complaint was a “motivating” reason for their termination. Usually, employers are smart enough to invent another reason for firing an employee who complained to the EEOC. The law is clear that you do not need “a smoking gun” to prove retaliation. Instead, you can use circumstantial evidence to prove a retaliation claim.
Employment attorneys rely on the following types of evidence to prove retaliation claims:
- Your employer made negative comments about your complaint
- The employer’s stated reasons for firing you are false
- The employer’s stated reasons are contradictory
- The timing is suspiciously close to when you complained
- You were treated worse than employees who did not complain
- The employer did not investigate your complaint of discrimination
- The employer did not follow regular disciplinary procedures in firing you
- The employer set you up to fail
These are just examples. The stronger the evidence of unfair treatment, the more likely you can prove retaliation in court.
Will the EEOC or DFEH Take My Retaliation Case?
You may need to file a new complaint of retaliation with the EEOC. This often restarts your investigation. Now, the agency now must prove the elements of a retaliation claim. (Retaliation is not the same as discrimination or harassment.), which are different than the elements of discrimination and harassment claims. Especially if you have a wrongful termination claim, the EEOC or DFEH may not be the best forum for your claims. That is because wrongful termination cases can be quite valuable and the EEOC and DFEH often focus on making change at your employer, as opposed to maximizing your damages. Learn more about how much your case is worth here.
For these reasons, you should speak to an employment lawyer as soon as possible after any retaliatory termination to determine the best approach. This is true even if you already have a pending EEOC case.
How to Prepare for Your Case Review or Free Intake Consultation
Most employment attorneys provide a free case review or intake consultation. This is an opportunity for you to share the strengths of your case and for the attorneys to understand your goals. Though intake staff and attorneys are skilled at focusing on significant pieces of your story, you should think about the following before your consultation:
- Close or suspicious timing between your complaints of discrimination and any negative employment consequences
- Think about employees who are similarly situated to you (similar jobs, experience levels, etc.) and was treated better than you were
- Think about what written evidence might exist,
- Explain which witnesses witnessed important pieces of your story and whether they will be helpful, neutral, or hostile to you
- Explain what your employer’s stated reasoning will be
Talk to an Experienced EEOC Retaliation Lawyer
We are passionate about workers’ rights. No employer should fire you because you demanded a fair workplace or complained of discrimination. Workplace retaliation is a social justice issue: if employers could fire everyone who complained of discrimination, harassment, or retaliation, workers would be too afraid to speak up.
We provide free, confidential consultations to California workers. You should contact us as soon as possible to make sure your claim is still within the time limits set by law. Contact us today through our website or give us a call at (213) 465-4802 to schedule a free consultation.
Julian Burns King graduated with honors from Harvard Law School and founded King & Siegel in 2018. As head of the Firm’s discrimination and harassment practice areas, she champions the rights of working parents and victims of workplace discrimination and harassment. She has been recognized as a “Rising Star” by Super Lawyers annually since 2018 and has recovered tens of millions of dollars on behalf of her clients.