Or, "How can a jury find your bully boss innocent of bias, but still return a big fat verdict in your favor?"

Sometimes it feels like the boss has all the power; your employer and H.R. hold all the cards. You just have to come into work and try to avoid the powerful people, and then get back out of there the second the work day is over. But you know what? An employee suffering through a hostile work environment can become more powerful than you imagine by learning their rights. There are many legal rights and lawyers’ strategies that greatly benefit employees, but few employees know about them. Today I’m going to reveal t you one of the most powerful, explain why employers’ fear it, and tell you exactly how to use it. It’s the legal claim called retaliation. Companies, H.R. professionals, and defense attorneys all dread retaliation claims.

Employers and their H.R. henchmen hate retaliation claims.  They hate retaliation claims because there is a proven pattern of companies going to court against employees, prevailing against the employees' charges of illegal discrimination and harassment, BUT, the jury finds that the supervisor did commit retaliation – in the very same lawsuit.  That’s what drives employers crazy. 

Companies will spend a ton of time and literally $100,000+ paying attorneys to defend an employment lawsuit alleging, for example, age discrimination.  After all the effort, hours, and dollars, the company proves that it discriminate against the employee on the basis of age.  Yet, the company leaves the courthouse a loser, and it's going to have to write a big fat check to the former employee (who was not discriminated against).  Why?  Because the former employee claimed both discrimination, and retaliation.  And since the employee won the retaliation claim, it really doesn’t matter to the employee one iota that he or she lost the discrimination claim.  The employee still won and the employee is still getting paid.  How is this possible to lose and win in the same suit?

You can allege more than one “claim” (or legal theory of how your employer wronged you) in each lawsuit. An easy example is an elderly woman who sues her former employer for terminating her for her age and for her gender. Her lawsuit contains two claims, and she only has to prove one of the two in order to prevail in court and force her ex employer to pay her money.

In a similar way you can bring a hostile work environment claim, and then add a retaliation claim because your boss treats you worse after you file the retaliation claim. The retaliation claim is a bit like a caboose full of dynamite that is pulled around by a run-away train called Hostile-Workplace. The caboose always comes after the engine, but if they both crash the caboose is more likely to explode. (Maybe I took that analogy too far). The point, though, is that even though you can’t have retaliation without first having the hostile-workplace, the retaliation is easier to prove, more feared by your ex-employer, and more likely to get you paid.

Part of the reason you are more likely to win a retaliation claim, and why the company fears it so much, is because you don’t first have to prove a hostile work environment occurred in order to win on your retaliation claim. Courts have specifically said that an employee can prevail on a retaliation claim by establishing that the employer retaliated against the employee for opposing allegedly discriminatory practices even if the practices were not, in fact, discriminatory. Sias v. City Demonstration Agency, 588 F2d 692, 692 (9^th Cir 1978).

All that is required to bring a retaliation claim is this:

1. You complain of a hostile work environment (based on a protected class) that you have a good faith belief is occurring;
2. Your boss treats you worse after you make your complaint than he/she did before you made your complaint;
3. You complain that you are being retaliated against for lodging your initial complaint
   

That's it, there's nothing else to it. The only caveat is to emphasize that the hostile work environment in #1 MUST be based on a protected class. (If you don't understand that, see my Hub "What is a Hostile Work Environment")

Here’s why retaliation claims occur so often and are so hard for employers to stop: imagine that you were at work and another employee accused you of something truly horrible like race discrimination. 

You’re shocked!  Anyone who knows you at all will say that you would never hold a person’s race against them.  You are no bigot!  And when you find out what the co-worker’s accusation is, it’s not like she misunderstood you or twisted your words – it’s like she’s putting words in your mouth that you never said. 

So, after you learn that this co-worker is falsely accusing you of racial bigotry, do you think you could treat her exactly the same way you did before she (falsely) accused you?  Could you resist confronting her about it?  Could you be friendly and talk to her just as frequently as you did before?  Could you include her in meetings and group lunches just like you did before?  Could you resist making even the smallest negative comment about her to your other co-workers? 

In all honesty, I would have a very tough time doing that.  Your supervisor is no different.  Even if everyone knows that your boss is a mean-spirited jerk, he doesn’t believe that he is a mean-spirited jerk.  He believes in his heart of hearts that he is innocent.  As a consequence, he can't resist the very human urge to defend himself, to attack his accuser, and “fight for” his career.  He will always retaliate.  And you should always be ready for it; for you, his retaliation is like ripe fruit from a tree falling directly into your basket.