A professor at a local university called my office a while back. She had witnessed her superior make negative comments to a co-worker about the co-worker's ability to work while pregnant. The professor reported the actions to the dean of the university and human resources. She then called me to find out if the dean’s negative comments about the validity of the complaint and the HR Department’s failure to investigate was unlawful in any way.
Title VII of the 1964 Civil Rights Act and the Louisiana Employment Discrimination Law, as well as a handful of other laws, make it against the law to discriminate in the workplace. These laws also make it unlawful for an employer to retaliate against an employee for exercising their rights under these laws, like when an employee reports potential discrimination.
Workplace harassment is discussed in another post on this blog - What is a Hostile Work Environment.
What is Retaliation? Retaliation occurs when an employer (through a manager, supervisor, administrator or directly) fires an employee or takes any other type of materially adverse employment action against an employee because the employee engaged in protected activity, like reporting alleged discrimination.
What is a Protected Activity? “Protected activities” are actions taken by employees to assert their rights to be free from employment discrimination, including harassment. For example, it is unlawful to retaliate against applicants or employees for:
filing or being a witness in an EEOC 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 of a disability or for a religious practice
asking managers or co-workers about salary information to uncover potentially discriminatory wages.
What is a Materially Adverse Employment Action? An adverse employment action is anything that would discourage someone from resisting or complaining about future discrimination.
For example, depending on the facts, it could be retaliation if an employer:
reprimands the employee or gives a performance evaluation that is lower than it should be;
transfers the employee to a less desirable position;
engage in verbal or physical abuse;
threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police);
increase scrutiny;
spread false rumors, treat a family member negatively (for example, cancel a contract with the person's spouse); or
make the person's work more difficult.
Important note: Engaging in protected activity does not shield an employee from all discipline or termination of employment. Employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences.
In summary, an employee must prove three essential facts in order to win in a case for Retaliation:
A protected activity;
A materially adverse employment action;
Retaliation caused the employer’s action.
Remedies or Damages available in a retaliation case may include back pay, front pay, lost benefits (ex: insurance, vacation pay), emotional distress damages, injunctive relief (ex: reinstatement), attorney’s fees, court costs, and in extreme cases, punitive damages.
So, the professor potentially has a claim for retaliation by her employer in these circumstances. She participated in a protected activity by reporting alleged discrimination. She may have experienced materially adverse action when the dean responded negatively to his complaint and the HR department. But does she have any damages? And can she prove her case? These are just a couple of factors to consider when determining how to proceed.
So what can an employee do when they experience potentially unlawful actions by their employer?
Keep written records of all the relevant facts. Who, what, when, where.
Follow company policies for reporting the incident.
Call a lawyer.
Employment cases are based on the individual facts of each case. Only an experienced employment attorney can assess the validity and value of your claim, and advise you on how to proceed.
Another topic: Whistleblowers also have a right against retaliation at work. Different state and federal laws govern different types of employees in whistleblower cases. This is a topic for a future post.
If you have questions about a potential legal issue, in the employment context or otherwise, contact the Law Office of Natalie K. Mitchell, LLC.