15 Frequently Asked Questions (FAQs) about Retaliation:
What conduct is “protected conduct?”
Conduct is protected only when a specific law prohibits retaliation for engaging in the conduct, or when a court finds that retaliation against the conduct jeopardizes established public policy. In other words, “protected conduct” is conduct that a law or a court deems protected.
What are some examples of protected conduct?
The National Labor Relations Act (NLRA) protects employees who collectively complain about terms or conditions of their employment, whether or not they are members of a union. The Civil Rights Act of 1964 prohibits retaliation for actions taken in opposition to unlawful discrimination. The United States Constitution protects public employees from retaliation for exercising their right to free speech when not performing their normal job duties. Safety and environmental laws prohibit retaliation against whistle-blowers who report violations of those laws.
Are employees who oppose conduct that they think is unlawful protected from retaliation if the conduct turns out to be lawful?
Yes, if done in good faith. The law protects employees who assert rights protected by law even when the employees are wrong about whether their rights were violated. So long as the employee has a good faith belief that her employer’s conduct is unlawful, he or she can challenge that conduct and still be protected from retaliation.
An example: a salaried employee may complain to the Department of Labor’s (DOL) Wage and Hour Division that her employer failed to pay her overtime. If the DOL investigates and concludes that she is not entitled to overtime, the employer cannot fire her for complaining.
If the employee suspects that he is about to get fired and complains about discrimination just to play it safe, should I still keep him employed?
I would recommend not firing him right away until you consult with an experienced employment attorney. Nevertheless, I think that in the long run, you can safely terminate that employee. After all, the employee must have a good faith belief that the employer was violating a law. If he does not have such a belief but complains merely to avoid a discharge, then he is not opposing any unlawful conduct, and he is not protected. In such a case, you as the employer can lawfully fire him.
My spouse and I work at the same place and she feels that she is a victim of gender based pay discrimination, but is afraid to complain. If I make the complaint on her behalf, or complain about it in general, am I safe from retaliation?
Yes. As long as you oppose unlawful discrimination, you are protected from retaliation. The discrimination does not have to be directed at you. However, you must engage in some sort of conduct to oppose it, and your employer must have knowledge of that conduct.
I heard a manager make a racist remark but said nothing about it until human resources questioned me. I answered truthfully. Was my conduct protected?
Yes. The U.S. Supreme Court found that anti-retaliation protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. The Court held that an employee could oppose discrimination by responding to someone else’s question just as surely as by initiating the discussion themselves.
I complained about racist statements that my boss made to me and the company reprimanded him. This boss then gave me unwarranted disciplinary warnings. Can I sue for retaliation?
Probably not, at least not yet. The employer’s adverse actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination. Every case is unique, but until a bogus write up that results in a suspension or a blocked promotion or a demotion (or something that otherwise causes you economic harm), a court could find that the employer’s actions are not adverse or harmful enough to justify a retaliation claim.
What is an example of an adverse action that was something less than a discharge?
Tangible adverse actions may include a transfer to an undesirable location, a significant loss in responsibility or prestige, or placement on a an undesirable shift, if those actions would be enough to deter reasonable employees from asserting their rights.
I quit right after I filed a complaint against my employer with OSHA. Now that employer is giving me bad references because of that complaint. Is that retaliation?
Probably. An employer generally cannot retaliate against a former employee. Courts have allowed employees to recover damages resulting from retaliatory employer references. Additionally, certain actions taken during the course of litigation, such as the filing of a counterclaim designed to intimidate the employee into dropping the lawsuit, might constitute unlawful discrimination. Again, if the employer’s action would deter a reasonable employee from asserting protected rights, it could form the basis of a retaliation claim.
What kind of evidence does an employee need to prove retaliation against my company?
First, the employee must prove that they engaged in protected conduct. If they opposed unlawful conduct with a written complaint to the company, the written complaint could prove that the employee engaged in protected conduct. The employee must also prove that he or she suffered an adverse employment action. This is rarely in dispute. Employers rarely admit that they took adverse action because employees engaged in protected conduct. Motive, or the employer’s reason for taking the adverse action, is invisible. Therefore, employees must usually prove a connection between their protected conduct and the employer’s adverse action with evidence of some of the following:
- a close connection in time between the protected conduct and adverse action, like where the employer retaliated as soon as it learned of the protected conduct;
- the lack of an investigation into the employee’s complaint;
- unequal and more favorable treatment of employees who do not complain;
- a campaign of harassment directed at the complaining party;
- hostility towards other complaining employees;
- a bogus explanation for the employer’s adverse action.
How close in time must the retaliation be, to suggest retaliation?
Time is probably the most important evidence of a connection between protected conduct and reprisal. Since the gist of a retaliation claim is that the employer “got mad and got even,” courts are looking to see if employers hit back quickly. As a result, courts have dismissed retaliation claims based on adverse actions taken several months after the protected conduct. In some cases the employer might wait patiently to retaliate in a tangible way. In many cases, the employer will still take less tangible actions early on, such as an immediate, unwarranted reprimand. Even though a reprimand might be enough for a retaliation claim by itself, it may be the proof necessary to connect a discharge some months down the road to the employee’s protected conduct.
What sort of unequal treatment indicates retaliation?
The evidence of discriminatory retaliation is identical to that used to prove gender, age, race and other types of discrimination claims. For example, an employer can retaliate by treating employees who oppose their unlawful conduct differently from and worse than similarly situated employees who did not engage in protected conduct.
If the employer gave the employee a bogus reason for terminating him. How can the employee prove the real reason was retaliation?
If the employee proves that the employer’s stated reason was: not true, or, true, but not sufficient to justify the adverse action; or true, but nonetheless not the real reason for the action, then the employee can prove “pretext.” If he has proof of pretext, a jury can conclude that the real reason was retaliation. The courts reason that since an employer is in the best position to know the reason it discharged an employee, proof that the employer made up a bogus reason allows an inference that the employer is hiding an unlawful reason. Pretext evidence can be enough, by itself, for a jury to find that the real, unlawful reason is retaliation.
How could the employer’s failure to investigate the employee’s complaint show retaliation?
An employer should investigate every legitimate employee complaint. A failure to do so could indicate that the employer did not take the complaint seriously or even resented the fact that the employee made it. An investigation of a complaint should, at a minimum, include the following:
- An interview of the complaining employee, the accused employee and any witnesses.
- A reasonable conclusion about the validity of the complaint; and
- A response consistent with that conclusion.
What can I do stop retaliation short of filing a lawsuit? (this one is for employees, but employers should take heed).
First, do not give your employer any justification for retaliation. For example, be the best employee the company ever had. Be polite and professional, even to the discriminator and retaliator, and never lose your temper. Second, keep a record of everything that happens to you. Keep documents that back up what you say. Make important communications in writing by, for example, using email. Third, respond to unwarranted reprimands with timely, professional rebuttals. You have to walk a fine line between holding your ground and appearing unwilling to correct alleged performance deficiencies, though. If you are at that point, consider working with an attorney on a response.
If you are facing a decision concerning this issue, please contact our office for a consultation.