To protect themselves against retaliation claims, companies should have documentation that the true reason for the adverse employment action was a legitimate and a non-discriminatory reason.
The employee must prove three prongs:
- They engaged in a protected activity
- They experienced an adverse employment action
- There was a causal connection between the protected activity and the adverse action.
What Can Protected Activity Include?
- Complaints of discrimination or harassment (Title VII, ADA, ADEA, GINA, USERRA, state statutes)
- Denials of fair pay and leaves (FLSA, EPA, ERISA, state statutes)
- Health and safety violations (OSHA and state equivalents, Workers’ Comp, HIPAA)
- Whistleblowing (Sarbanes Oxley, Dodd Frank Act, state whistleblower acts)
- Reporting false claims to the government (False Claims Act and state statutes)
- Concerted activity (LMRA, NLRA; includes union and nonunion employers)
- Actions covered by other state statutes and city ordinances.
Retaliatory Conduct Can Include the Following:
- Ignoring or ostracizing
- Leaving out of formal or informal meetings
- Threatening
- Changing pay, changing workload, changing shifts
- Refusing reasonable requests
- Issuing verbal or written warnings
- Suspending/Transferring/Demoting/Terminating
- Withholding opportunities for advancement
- Punishing an employee
- Punishing the complaining person’s family or close friends
- Giving negative references
What Is Not Retaliation?
- The employee did not act in good faith when making the complaint or engaging in opposition.
- The adverse employment action was not a material action that would deter an employee from engaging in or supporting a protected activity.
- The person who made the decision to impose the adverse employment action did not know that the employee engaged in a protected activity.
References:
- Jody Katz Pritikin, HR Daily April 11, 2012, Retaliation—Shoulda Put a Ring on It!
- Burlington Northern and Santa Fe Railway Co. v White (2006). This case established the broad view of what constitutes “adverse action,” including conduct that dissuades a worker from making or supporting a claim.
- Crawford v. Metropolitan Govt. of Nashville (2009). This case established that a witness who participated in an internal investigation engaged in a “protected activity.”
- Kasten v. Saint-Gobain (2011). This case established that a verbal complaint about time clock placement was sufficient “opposition” for FLSA retaliation claims.
- Thompson v. North American Stainless LP (2011). This case showed that Thompson had 3rd party standing to sue when his fiancée engaged in a protected activity and the adverse consequence was Thompson’s termination. This case also established the concept that “firing a close family member” would almost always meet the retaliation standard.
