When Employers “Retaliate”…

As an employee, you should feel comfortable reporting wrongdoings or potential illegal activities. Similarly, an employer would benefit from knowing such accusations, in order to make the business the best it possibly can be. Unfortunately however, the reality is, some employers punish those who make formal complaints or reveal transgressions.

If you were fired or believe that your employer acted negatively towards you as a result of a complaint, you may be a victim of “Retaliation Discrimination.” It is vital to get informed and know your rights as an Employee to ensure your legal rights are protected. Here’s a section of my book “The Employee Rights Handbook” that deals with just that.

Retaliation Discrimination

Perhaps the most common form of illegal treatment that employees suffer is retaliation discrimination. Employees who legitimately assert discrimination rights by filing charges in federal or state court, with the EEOC, or through state agencies, complain to the employer before taking action, testify on behalf of another party, assist another party in administrative or judicial proceedings, or advise fellow employees of their rights under the discrimination laws are protected from adverse retaliation by an employer. If you reasonably believe that a Title VII violation was committed, an employer cannot take any action adverse to such rights, such as failing to promote, discharging, or unduly criticizing you as a direct result of that action.

Acts taken by an employer as a direct result of your filing charges or threatening to go to the EEOC or commence a lawsuit are viewed by the courts as retaliatory. Many employers who are accused of discrimination have valid defenses and can overcome such charges. However, they foolishly take steps deemed to be in retaliation against an individual’s freedom to pursue such claims and eventually suffer damages resulting from the retaliatory actions, not the alleged discrimination.

The following list identifies common areas where retaliation occurs:

• Transfer or reassignment that is undesired (even with no loss in pay or benefits)
• A transfer out of the country
• Threats, when repeatedly made and when disruptive to your job performance
• Harassment on the job
• Giving unfavorable references to a prospective employer, or otherwise interfering with your efforts to obtain a new job, or wrongfully refusing to write a recommendation on your behalf
• Firing you or forcing retirement by eliminating the position and offering only lesser alternative positions
• Denying or suspending severance payments
• Retroactively downgrading your performance appraisals and placing derogatory memos in your personnel file
• Refusing to promote or reassign you or adding preconditions for a requested reassignment
• Transferring you to a job with fewer amenities, such as no office, phone or business cards
• Increasing your workload without good reason
• Adversely changing or decreasing your wages, vacation time, or benefits
• Delaying the distribution of tax and Social Security forms
• Interfering with an employment contract

The burden of proof necessary to prevail in a retaliation lawsuit is similar to other kinds of discrimination actions and utilizes a burden shifting framework. Thus, a plaintiff bears the initial burden of establishing a prima facie case of retaliation by showing (1) he exercised rights protected under Title VII, FMLA or other protected federal, state or local law, (2) he was qualified for his position, (3) he suffered an adverse employment action, and (4) the adverse employment action occurred in circumstances giving rise to an inference of retaliatory intent.

If this burden is met, a presumption of retaliation is created and the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the alleged wrongful act. If the employer does so, the presumption of discrimination is rebutted and the burden shifts back to the plaintiff to show, without the benefit of any presumptions, that more likely than not the employer’s decision was motivated, at least in part, by a discriminatory reason.

Proving discriminatory intent is often made by direct statements to the complainant such as “you are a pain in the ass,” or “I’m tired of your complaints.” It also helps if the adverse act (e.g., a firing) takes place within a short period of time after the complaint is made. In one case for example, a teacher had received excellent evaluations, letters of praise, and commendations from colleagues from the previous administration. But after engaging in activities as a member of the local teachers’ union, she received unsatisfactory performance evaluations, was cited for alleged incidents of professional misconduct, and was denied tenure. The court ruled that since all of this occurred after she was elected as the union’s co-chapter leader, it was likely that illegal retaliatory conduct had occurred.

A plaintiff need only establish general corporate knowledge rather than proving that the ultimate decision-maker was aware of a complaint. Generally, as long as you complain (preferably in writing) to someone whose job is to investigate and resolve such complaints and suffer an adverse action, a retaliation lawsuit will be allowed to proceed to trial.

Recognizing what constitutes retaliation is not always clear. In one case, for example, a New York court ruled that the loss of an office and phone previously provided to an employee who was informed of a termination decision and was waiting  out his numbered days on the payroll searching for a new job does not, in and of itself, amount to adverse employment action. Nor does preparing a poor performance

review in the absence of evidence that the employer gave the negative evaluation in bad faith. Thus, you may not be able to sue over every action that causes you dismay. The acts must be serious and provable — that is, there must be a causal connection between the protected activity and the adverse employment action.

Never falsely accuse an employer of a wrongful act in the attempt to obtain leverage, because you may not be legally protected if you then suffer harmful retaliation. However, you are protected against retaliation in a variety of nondiscriminatory areas such as complaining about overtime policies, safety (OSHA) violations, and filing a workers’ compensation claim. Most federal laws, such as the Civil Rights Act of 1964, the Family and Medical Leave Act, and the Americans with Disabilities Act prohibit retaliation against anyone filing a charge. So do many federal and state whistleblower statutes.

STRATEGY: Do not stand idly by when an employer fires or demotes you, gives you an unfair or harsh evaluation, or singles you out in a negative way. This also includes giving a bad reference after you leave.

Constructive discharge, defined as conduct forcing you to resign, is an indirect violation of the same laws, and the employer cannot mistreat you to the extent that you suffer intolerable working conditions and are forced to resign. If you prevail in such a case, damages you may receive include reinstatement, back pay, attorney fees, punitive damages, and front pay with interest.

Often a supervisor will say to a worker, “If you don’t like it, quit.” Reconstruct such statements (e.g., note the time and place it was said and who overheard the remarks). Speak to those witnesses and prepare a diary to document what was said. If you state in court that you quit because this is what your supervisor told you to do, your case can be strengthened, depending on the facts.

Always view suspiciously an employer’s actions if you are transferred or demoted after complaining about alleged discrimination. Demand specific factual reasons for any company action if this occurs. If you believe the reasons are false, or you were treated unfairly as a result of complaining about an employer’s illegal acts, speak to an employment attorney immediately for advice and guidance.

For a full depth analysis on this topic and many more, visit http://legalstrategiespublishing.com/ to purchase “The Employee Rights Handbook” today!