Retaliation, like discrimination, takes many forms and is one of the most common ways in which employers break the law.
Why? Because businesses/owners/supervisors tend to become defensive when an employee makes a complaint about illegal activity – happening on their watch – and the response is often to target the complainer, rather than address the actual problem.
Some of the most common (real world) forms of retaliation.
1) Toni is being harassed by a supervisor (of a different sex) and does what the company has always said is the right thing – complain. The company “investigates,” which includes bringing that supervisor in for a meeting. Two weeks later Toni receives a demotion, followed by a quick termination.
This looks like retaliation because Toni made a legally protected complaint opposing sex discrimination, and absent some legitimate reason for the action, Toni may have some legal recourse.
2) Jo witnesses a co-worker being humiliated by a group of other co-workers because of his race and the way that he dresses. Thinking it will help, Jo calls the team leader and tells her about what's going on. Jo is called in for an investigative interview, and provides the company with the names of employees who were involved.
Two days later a note appears on Jo's car with a threat, labeling Jo as a “rat.” Jo complains about this as well but it goes on, escalating in severity, for two more weeks until Jo is left with no choice but to resign out of fear for safety.
Jo's complaint was legally protected, because it opposed discrimination based upon race on behalf of a co-worker. If the complaint is legitimate, Jo likely has protection from retaliation based upon reporting illegal conduct and participating in an investigation into allegations of illegal conduct.
3) Pat works for a company that handles removal of asbestos from school districts. On multiple occasions Pat sees other employees removing the asbestos without taking appropriate – and legally required – safety measures. Pat has kids, and knows the risks of asbestos, so Pat reports the illegal conduct to the Vice President of the company.
After reporting the conduct Pat receives a hostile and threatening phone call from the owner of the company, suggesting that Pat better not bring this up again. The following week Pat is removed from the schedule, and no longer receives any shifts.
Pat likely has a complaint for whistleblower retaliation because of having made a complaint about a matter of public safety in the workplace.
The above examples are just a few examples that we have witnessed first-hand. They have happened to our clients.
Many State and Federal employment laws protect individuals from retaliation. These include:
The Family and Medical Leave Act, which protects employees from retaliation based upon having taken leave to deal with a serious health condition of their own of a child or parent;
Title VII of the Civil Rights Act, which protects employees from retaliation based upon making a complaint opposing illegal discrimination based upon race, sex, pregnancy, national origin or religion.
The Americans with Disabilities Act, which protects employees from retaliation after requesting a reasonable accommodation or making a complaint about having been treated differently because of a disability.
The Age Discrimination in Employment Act, which protects employees from retaliation after complaining about Age related discrimination at work.
The Fair Labor Standards Act, which protects employees from retaliation after making complaints about unpaid wages, unequal pay, or on behalf of workers who aren't receiving appropriate pay.
USERRA, which protects employees from retaliation for missing work because of military service, or complaining about it when they return.
The common theme among many anti-retaliation provisions is that the employee must have complained about some conduct or exercised her rights under the law. There are two critical mistakes that employees make which can hurt their claims following retaliation.
- The employee does not put the request, or the complaint, in writing. This is crucial. Whether through email or written complaint, you MUST put complaints or requests in writing, and keep a copy. We have seen countless examples of claims that had real merit go nowhere because there is no proof of the request or complaint and the employer is denying that it had any knowledge.
- The employee does not make the complaint to the right person/office. You must know if your company has a complaint policy or procedure (check the handbook), and you must follow that policy or procedure to the “T”. This means that if you are required to make your complaint, in writing, to your immediate supervisor, you do just that.
Too often employees complain verbally or in writing to the wrong person, and this provides the employer with a little known but very strong defense – that the employee did not follow the well-established complaint policy.
If your company does not have a complaint policy your best bet is to complain to Human Resources – in writing – as many times as necessary. If your company is smaller and does not have a complaint policy or an HR department, our suggestion would generally be to make the complaint to the owner or president, in writing.
If I am the victim of retaliation, what are my legal options?
Retaliation cases are most often pursued in the same or similar manner to cases alleging discrimination. In many instances this means that you will first file a complaint with the EEOC before proceeding to federal court. Some laws, however, including the FMLA, USERRA and Fair Labor Standards Act, do not require that you file an EEOC complaint first, and in those circumstances your case may be brought directly in court.
The key is to take action. If you have been terminated after making a legally protected complaint you should act quickly. As with most other employment discrimination laws – Federally and in New York – the timelines governing possible claims are short and if you miss them you could be out of luck.
If you have questions about retaliation in the workplace contact us today. Or, for a quick, confidential review, submit our online employment questionnaire.