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Retaliation claims: The cruelest employment litigation

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retaliationWhat’s even worse than being the victim of employment discrimination? Speaking up about it and getting fired.

For an employer, what’s even worse than getting falsely accused of employment discrimination? Winning that case but losing one for retaliating against that false accuser.

Pretty much all the statutes that protect employees from discrimination on the basis of a protected characteristic — such as race, sex, national origin, religion, age and disability — also prohibit retaliating against someone for asserting their rights under those statutes. It is almost a given that a good discrimination claim asserted by a current employee will generate at least a feasible retaliation claim. It is remarkably common for a weak discrimination case to engender a strong retaliation case.

The reason is pretty self-evident. Accusing someone — and your corporate employer is a group of “someones” — of behaving in a racist, sexist, homophobic, anti-Semitic, ageist or otherwise bigoted way is not exactly a love letter. It is insulting. Many people violating these laws don’t really think they are doing so. And many people accused of violating these laws are not really doing so.

Either way, one common, normal human reaction to an insult is to lash out or at least to feel some hostility to the accuser and insulter. To encourage employees to actually avail themselves of the laws’ protections, legislators built in the anti-retaliation protection.

Over the past decade or so, more and more employment disputes have included or have consisted solely of retaliation claims. The federal Equal Employment Opportunity Commission counts 42,018 such claims in 2016 versus 22,555 in 2006.

Just what is unlawful retaliation? It can be a pretty broad array of activities. The legal definition boils down to any action that would cause a reasonable person to be discouraged from asserting the rights protected under the statute in question. This is a different standard from what applies in the underlying discrimination matter. To prove discrimination, an employee has to show an adverse employment action motivated by the employee’s protected characteristic.

An adverse employment action can be a failure to hire, a firing, a demotion, a pay cut, a refusal to promote, a lost bonus or other opportunity, shift changes. All these things can also be unlawful retaliation, but so can a good deal more.

Some cases have found retaliation in an action against a complaining employee’s relatives or associates — for example, firing the spouse or fiancé of the complainer, changing an employee’s shift deliberately to conflict with known child care obligations, increased and targeted enforcement of previously ignored rules or reclassification of a job to a lower pay grade.

Employee action that cannot be retaliated against is not confined to filing formal complaints of discrimination with government agencies or notifying human resources or other management representatives within a company. The Equal Employment Opportunity Commission’s website advises that protected activity includes:

• filing or being a witness in an Equal Employment Opportunity charge, complaint, investigation, or lawsuit;

• communicating with a supervisor or manager about employment discrimination, including harassment;

• answering questions during an employer investigation of alleged harassment;

• refusing to follow orders that would result in discrimination;

• resisting sexual advances, or intervening to protect others;

• requesting accommodation for a disability or for a religious practice; and

• asking managers or co-workers about salary information to uncover potentially discriminatory wages.

So, an employee willing to stick out his or her neck to get an employer to comply with employment law should feel comforted that if the employer’s reaction is retaliatory, the law provides protection. On the other hand, employers should prepare managers to react with restraint and care toward any employee expressing concern about protected characteristics. Even a way off-base allegation of discrimination is protected by the anti-retaliation provisions.

Attorney Margaret M. Sheahan is a partner at Mitchell and Sheahan P.C. in Stratford. She provides legal advice and representation to both private and public-sector employers and to individuals in their workforce relationships. She can be reached at 203-873-0240 or msheahan@mitchellandsheahan.com.

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