Revenge is Not Always a Dish Best Served Cold: Employer Retaliation Can Be Costly

Workplace retaliation is one of the most common, yet most often overlooked, violations of law. Retaliation in the workplace generally occurs when an individual suffers an adverse action by an employer because the individual has engaged in, or may engage in, one or more activities protected by federal, state, and/or local anti-discrimination laws, whistleblower laws, or other laws that protect employees from retaliation by employers for exercising their employment rights. Employees typically do not need to prove any underlying claim (for example, that unlawful age or sex discrimination actually occurred) in order to be protected from retaliation, only that the employee had a reasonable good faith belief that the conduct was unlawful, in cases where the employee made the complaint. As a result, employers that respond reflexively or in a heavy-handed fashion to an employee’s discrimination or whistleblowing complaint may subject themselves to an administrative charge, lawsuit, and/or money damages solely on the basis of the employer’s retaliatory act.  This can happen even when the employee’s original discrimination or whistleblowing complaint is ultimately determined to be unwarranted.

Perhaps, then, it is not surprising that the U.S. Equal Employment Opportunity Commission (EEOC) reported in 2016 that retaliation has become the most frequently alleged basis of discrimination in the U.S. According to the EEOC’s statistics for the 2018 fiscal year, 51.6% of all charges filed with the EEOC were retaliation claims.

Federal, state, and local laws (such as in New York City) protect employees from retaliation in a wide variety of employment contexts. For example, retaliation claims under federal law relate to initial employee complaints or other protected employee activity surrounding:

• Race, sex, national origin, religion, and color (all under Title VII of the Civil Rights Act of 1964 or the Equal Pay Act)
• Age (Age Discrimination in Employment Act)
• Disability (Americans with Disabilities Act)
• Wage and hour issues (Fair Labor Standards Act)
• Family and medical leave (Family and Medical Leave Act)
• Employee benefits (ERISA)
• Union organizing (National Labor Relations Act)
• Occupational safety and health (OSHA)
• U.S. Securities and Exchange Commission (Sarbanes-Oxley Act and Dodd-Frank Act)

There are additional retaliation protections for whistleblowers under applicable state laws, such as those relating to employees reporting public health risks or other employer violations of law.

Protected Activity

Depending on the particular retaliation claim(s) at issue, protected employee activity may include both:

• Formal participation in a legal proceeding involving the employer, such as filing a charge with the EEOC, testifying, or otherwise “assisting” in a proceeding; or
• Less formally “opposing” any unlawful conduct that may also be subject to an anti-retaliation provision. The EEOC notes that protected “opposition” activity “. . . broadly includes the many ways in which an individual may communicate” either explicit or implicit opposition to perceived employment discrimination. Accordingly, employers may be on the hook for a near-limitless universe of retaliatory acts against employees who have spoken up in some way about perceived unlawful conduct, even when a formal complaint is not lodged with the human resources department or management.

Unlawful Retaliation is Broad and Need Not Be Work-Related

The New York State Division of Human Rights advises that unlawful retaliation can be any action that would have the effect of dissuading a reasonable worker from making or supporting a charge of harassment, or any other prohibited practices. Unlawful retaliation by an employer can occur even after the individual is no longer employed by that employer. Further, the action does not need to be job-related or occur in the workplace.

For employers, vulnerability to such a wide swath of potential retaliation claims should reinforce the need to ensure the availability and proper functioning of an internal complaint and investigation process that is regularly communicated to employees, along with an explicit anti-retaliation policy. Accordingly, employers should consider updating their nondiscrimination/whistleblower policies to require supervisors and managers to report any alleged, known, or suspected unlawful conduct to another appropriate party at the company.

For employees, the broad protections against retaliation offered by many federal, state, and local employment laws should help provide the courage they need to get “on the record” by voicing their opposition early to potentially unlawful conduct, or directly participating in a complaint. Doing so will often serve as an asset to employees who later experience an adverse action by their employer, as they will be able to demonstrate through documentation and/or witnesses that they attempted to utilize the employer’s internal complaint and investigation process (assuming there was one), but were subsequently unlawfully punished.

If you have any questions about this or any other legal matter, please email me at dtharmon@norris-law.com.