Accurate and complete documentation is critical for a worker to prove employer retaliation. Some forms of harassment are obvious, but some are subtle. An employee may have received positive or neutral evaluations before they filed a discrimination complaint with the federal Equal Employment Opportunity Commission (EEOC) or the Illinois Department of Human Rights (IDHR) but receive negative evaluations after filing the discrimination complaint. Saving evaluations, emails and other documents that show that the employer was satisfied with the work before the discrimination complaint was filed can help to prove that the negative evaluation is in retaliation for the discrimination complaint. Timeliness is also important. Courts have rejected or overruled employer retaliation suits because one isolated negative action occurred several months after a complaint was filed.
Proper documentation is especially important for countering an employer’s assertion that a retaliatory action is based on legitimate business needs. A person who applies for and is denied a promotion may file a discrimination complaint with the EEOC or the IDHR. A week later, that person’s schedule is changed so that they are now required to work an evening shift instead of a day shift. This change throws the employee’s child care and transportation arrangements into turmoil, making it extremely difficult for them to keep the job. The employer may actually have a genuine business need for changing the employee’s schedule, but if that is the only employee who’s schedule was changed, the employee has a better chance of proving harassment. The employee would need to be able to prove that no one else in that workplace had their schedule changed.
Changing an employee’s schedule is one way that an employer may retaliate against an employee for filing a discrimination complaint. Firings and demotions may be relatively easy to prove as retaliation. Some employers have been known to move an employee from an office into a closet or to forget to notify them of meetings about their projects. Petty slights and annoyances do not rise to the level of harassment or retaliation. Using a gruff tone of voice in conversation is not considered harassment.
An employee who files a discrimination complaint is not excused from performing their job to expectations after filing the complaint. They must still show up for work on time and meet deadlines. Failing to do so only helps the retaliating employer justify their decision not to promote the employee.