PRACTICE AREAS

Retaliation

What Can’t an Employer Do to Retaliate Against an Employee Who Has Filed a Discrimination Complaint?

It is prohibited by law for an employer to fire, demote, harass or otherwise “retaliate” against an individual for filing a charge of discrimination, participating in a discrimination proceeding or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex or religion, national origin, age and disability, also prohibit retaliation against individuals who oppose unlawful discrimination or participate in employment discrimination.

However, the protections for employees against retaliation are even greater than they are for discrimination. Last year, the Supreme Court of the United States expanded the protection for employees by ruling that “retaliation” not only includes actions such as firing, demoting or other tangible actions, but any action that would dissuade a reasonable person from participating the EEOC process. This added protection now can also include actions such as job transfers or even reduced responsibility at the same position. Retaliation can also occur with respect to events such as denial of promotions, unjustified negative evaluations, negative references or increased surveillance by a supervisor of an employee’s performance.

What kinds of employees are covered by the retaliation statutes?

“Covered individuals” are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability. Individuals who have a close association with someone who has engaged in such protected activity also are covered individuals. For example, it is illegal to retaliate against an employee because his spouse participated in employment discrimination litigation.

What Kinds of Evidence Will I Need to Prove A Retaliation Case?

To prove retaliation in the workplace, labor and employers look to cases where an employee will generally show that: (1) the employee engaged in a protected activity, such as filing a discrimination complaint or for example, testifying in a discrimination case against the employer; (2) the supervisor, manager or whomever it was that retaliated against the employee, was aware that the employee took the protected action; and (3) there was a nexus between the retaliatory action that was taken and the protected activity. The last element can generally be shown by proximity in time between the protected activity and the action taken against the employee.

Sometimes, even the failure of an employer to take disciplinary action against an employee, even though it was justified, may be evidence of retaliation, if the action was taken after the employee filed a discrimination complaint. For example, let’s say a United States Postal Service, federal employee refused to provide his current residential address as required. However, his supervisor never disciplined him for not providing the address until several days after his mediation with his labor and employment lawyer ended without a settlement. In this case, a jury could find that the failure to provide the address wasn’t a true concern of the employer until his discrimination activity was aggressively pursued. In other words, the employer used this violation as an excuse to retaliate against the employee for his discrimination activity.

What Can I Do As An Employee To Prepare Myself For A Retaliation Case?

Unfortunately, many employees believe that if they lay low, the storm of retaliation will pass them. However, failing to take action is exactly what the retaliator wants to see happen. The last thing that supervisor wants is for the employee to seek the advice of a labor and employment lawyer. At the same time, employees have to realize that while a hostile work environment is going on, the employer may be in the process of setting the employee up for “legitimate” reasons for termination.

Employees must do the following during this incredibly stressful period:

1. Consult and retain a labor and employment lawyer. The advice received at a consultation can make all the difference in achieving a successful outcome in a potential lawsuit.
2. When the employee complains about discrimination, he or she should absolutely make sure that the person retaliating against him or her was aware of that employee’s participation in the protected activity. This can be as simple as an email that’s copied to the retaliator, with a copy of the discrimination complaint.
3. The employee should never take his or her job lightly. The employer during a hostile work environment period is looking for any possible basis to legitimately terminate the employee. The last thing an employee wants to do is give some real basis for the employer to terminate him or her. Take all assignments seriously.
4. Never be disrespectful or talk back to a supervisor. If you do this, you’ll likely be branded as “an attitude problem employee.” The better course of action is to have frequent communication with your labor and employment lawyer. Let him know what you’re facing. Your labor lawyer will help put things into perspective for you. We’ve explained to countless clients that what is actually happening to the employee is really the first stages of the legal battle which believe it or not is already taking place. As an employee is going through this, he or she should continuously ask, “how would six reasonable people serving a jury in this case view this event?”

What In General Is Retaliation Due to Whistle Blowing?

In 1986, Congress passed what is now known as 31 U.S.C. Sec. 3730(h), which states:

Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee on behalf of his employer or others in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole.

Employees who blow the whistle on their employers may be entitled to reinstatement with seniority, double back pay, interest, special damages sustained as a result of discriminatory treatment, and attorney’s fees and costs. There is federal jurisdiction for these whistleblower claims and many states have their own whistle blower protection laws.

How Does Your Law Office Get Involved In These Kinds of Cases?

We understand the serious nature of retaliation against your career. Our lawyers and staff are committed to examining each and every aspect of your case in order to determine the best course of action for you. Whether a whistleblower matter, an allegation of sexual harassment, discrimination, or another type of situation, we can stand with you in facing these challenges together. Our office has also had considerable experience in high profile matters handled in Federal Court. We are dedicated to your needs, ensuring that your rights are preserved, and standing by you throughout the entirety of your case. We invite you to contact our office for your initial no-cost consultation at (800) 294-1317.