Workplace Retaliation: What it is and the Laws that Protect You from it

Jun 20, 2014 by

Equal Employment Opportunity Commission (EEOC) and the Americans with Disabilities Act (ADA) are just two of the many agencies and laws that safeguard the rights of all employees, as well as job applicants, in the United States. Through these two federal decrees, individuals are protected from being intimidated, coerced, threatened, harassed, unjustly compensated, discriminated against, wrongfully terminated, (and many others) in the workplace. Besides these, there is another protection that EEOC offers, but which employees may not be aware of – that is, protection against retaliation.

Retaliation refers to any adverse act resorted to by an employer, labor organization or employment agency against an employee who participates in legally protected activities. An adverse act is any act, like termination, refusal to hire, unjustified negative references or evaluation, and criminal or civil charges, that will impede a person from opposing or participating in employment discrimination proceedings; a legally protected activity, on the other hand, refers to any act that will help expose and /or prove discriminatory practices or harassment in the workplace. Some samples of protected activities are:

  • Refusal to follow a superior’s order which is honestly alleged as discriminatory
  • Protesting/picketing against workplace discrimination
  • Showing intent to file a charge of discrimination or actually filing a case of employment discrimination
  • Acting as a witness in an EEOC investigation or legal proceeding

There are acts of retaliation that are quite obvious, such as reduction in salary, demotion, being denied a raise or promotion, and being fired from work; there are retaliatory acts too that are subtle and, therefore, not immediately apparent, like job relocation or a change in work schedule, which could limit employee flexibility or greatly inconvenience a parent-employee.

There have been many laws passed and agencies formed with the intent of protecting employees from employer retaliation regardless of the status of their employment (while still employed, retaliation may be in the form of demotion, reduction in salary, etc.; retaliation after employee’s resignation from work can include bad referencing). Some of these laws are:

  1. Occupational Safety and Health Act (OSHA), which was signed into law in 1970 and which gave rise to the government agency called the Occupational Safety and Health Administration (OSHA). This law was designed to keep workers from any hazards in the workplace, like toxic chemicals, damaging noise levels, extreme temperature (heat or cold), dangerous machinery, etc.;
  2. Family and Medical Leave Act (FMLA), which became a law in 1993. It lays down the right of every employee to take time off from work due to illness or injury, either to his/her own person or to a family member, and arrival of a new child (through birth or adoption);
  3. Sarbanes-Oxley Act (SOX). This became a law in 2002 and is also known under the name Public Company Accounting Reform and Investor Protector Act of 2002. The Act asks employees to report to the Public Company Accounting Oversight Board (PCAOB) any accounting violations or accounting fraud scandals committed by public companies.

Obviously, no employer would admit resorting to retaliatory acts to get back at an employee. However, if you honestly feel that your employer is retaliating against you, then one of the wisest moves to take is to ask for legal advice. By contacting a hostile work environment lawyer, you will be able to work through your case with an expert.

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Supreme Court Decisions on Employment Discrimination

Jun 13, 2014 by

Last month, the Supreme Court convened to rule on a number of high-profile cases before recessing for the summer. While many people were focused on the Supreme Court’s decisions regarding the Defense of Marriage Act and California’s Proposition 8, or the Voting Rights Act, there were two cases decided 5 to 4 that had a significant impact on employment discrimination and received much less press coverage. The website of Melton & Kumler, LLP, fittingly notes that in spite of the progressive attitude shown by the Supreme Court’s reversal of DOMA and Prop 8, employment discrimination is still a serious problem today.

These two cases, Vance v. Ball State University, and University of Texas Southwestern Medical Center v. Nassar, respectively ruled on the definition of a “supervisor” when looking at racial or sexual harassment cases, and the burden of proof on employees regarding illegal retaliation against employment discrimination complaints.

In the first case, Vance complained of racial harassment by her supervisor. However, the court ruled that Vance’s harasser was a co-worker, rather than a supervisor, and therefore needed more proof from Vance before Ball State University could be found liable for the damages.

In the second case, Nassar, a physician at the UT Southwestern Medical Center, had complained of racial and religious discrimination and now claimed that the medical center had retaliated by giving him a sub-standard job offer. The court ruled that it was not enough for retaliation to have been part of the motivation for the medical center’s undesirable job offer, but rather it needed to be the defining reason for the action.

The court’s rulings, which met passionate dissent from the four more liberal justices, mark a trend toward greater difficulty for employees who have been discriminated against, or punished for complaining about discrimination, to come up with credible cases and receive compensation.

If you believe you have a discrimination case, contact a discrimination lawyer today to discuss your options.

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