What if my employer claims he did not know about protected activity?
Discrimination on grounds of age, sex, race or status etc., harassment or some other work place wrongs when reported or complained of by an employee are referred to as protected activity.
As an employee, making such complaints or reports insulates you from any reactionary unfair treatment from your employer. Otherwise, they’ll be liable for illegal retaliation.
Illegal retaliation occurs when your employer punishes you for asserting your right to be free from employment discrimination or harassment or for reporting other wrongdoings in the work place.
Employers are increasingly resorting to the use of ignorance of fact as a defense to their employees’ claim of illegal retaliation. So, you have filed a report or a complain of discrimination with the EEOC, your employer can devise the window period between the filing and getting him noticed to fire you or arbitrarily change your shift or reduce your pay and he’ll claim he never got to know about your complaints.
Hence, there was no way the ‘unfair’ treatment would have been as a result of something they did not even know about. Looks like a perfect defense!
In a case of illegal retaliation, the issue of causation is one thing courts consider to either validate or dispose your claim.
To prove illegal retaliation, there must be an evidence of a causal link between the legally protected activity you engaged in and that subsequent disciplinary action which you feel was unfairly taken on you as a result.
Sand Bagging the Defense of Ignorance
The defense of ignorance seems to be a sure bet for employers. Since you cannot reasonably claim a person has acted against you based on an action you took if they are able to show that they had no knowledge of that action.
If your employer is able to lodge a valid claim of ignorance of your protected activity, there is no way you can succeed in your charge of illegal retaliation. Hence, you have to prevent any chance of him been able to claim ignorance.
Here are tips to help you prevent your employer from being able to claim ignorance and use it as a defense in your claim of illegal retaliation;
- Try to file the complaints to your employer in person: If you file your complaint with the EEOC, your employer can easily get informed about this and have a chance to say he never knew you were there and then fire you.
Therefore, it is advisable that you file your complaint directly with your manager or direct supervisor. This way, your employer cannot claim ignorance of your protected activity.
- Talk to more people who are part of the company about your complaint: As a way to ensure no ignorance can be claimed, you can also talk to people who are superior officers and have a say in the company like your HR head etc. after talking to your employer.
- Keep Records of your works and conversations.
Contact an Attorney
In your claim of illegal retaliation or any other claim bothering on the issue of your employment, it is only prudent to keep an experienced employment lawyer briefed. An employment lawyer will assist you in creating a water tight claim and of course responses to any defense like ignorance which your employer might want to resort to.
Having an employment lawyer on your side is your best shot at making a successful case against illegal retaliation. You should get one today!