Provided by: Judge Ruth B. Kraft
Did you know that retaliation claims are the #1 type of claim filed with the EEOC? In 2012, 38% of all claims filed were retaliation allegations. And, ironically, even if an employee’s claim of age discrimination, violation of the Americans with Disabilities Act, etc. fails, he or she may still recover a large verdict just on the issue of retaliation. The courts have expanded the doctrine of retaliation. Both current and former employees are covered; just because someone is no longer working for you does not mean that your worries are over!
To prevail in a retaliation claim, the employee must prove the following three elements:
(1) that they engaged in a legally protected activity, such as filing a discrimination claim or opposing discrimination;
(2) that they suffered an adverse employment action, which need not rise near the level of termination; and
(3) that there is a causal relationship between the protected activity and the adverse action.
Additionally, Title VII of the Civil Rights Law prohibits retaliation that is not directly related to employment or that causes the employee “materially adverse” harm outside the workplace.
In one landmark case, the discharged worker had done none of the above but was fired because of “guilt by association”; her fiancé, who worked for the same company, was fired after he reported a claim for sexual harassment. Subsequently, the employer fired her as well. This is not an uncommon scenario. Frequently, employers feel that an employee has been tainted by a friendship with a co-worker who was discharged for cause and that, if she remains employed, she might attempt to obtain access to confidential information or to destroy material evidence. Employer beware! One classic element is the “nexus” or timeline between a complaint of discrimination and discharge.
Plaintiffs’ counsel routinely use the strategy of suing for retaliation along with the assertion of discrimination in the knowledge that, even if the main cause of action fails, the retaliation claim may survive and be quite profitable on its own.
Do you have any anti-retaliation policy? Do you know what actions can be interpreted as retaliatory? And, if you have a policy, (1) do you know if it’s “good enough, and (2) how are you disseminating it and making your position known to workers? It is no longer enough to include it in your employment handbook.
To prevail in a retaliation claim, the employee must prove the following three elements:
(1) that they engaged in a legally protected activity, such as filing a discrimination claim or opposing discrimination;
(2) that they suffered an adverse employment action, which need not rise near the level of termination; and
(3) that there is a causal relationship between the protected activity and the adverse action.
Additionally, Title VII of the Civil Rights Law prohibits retaliation that is not directly related to employment or that causes the employee “materially adverse” harm outside the workplace.
In one landmark case, the discharged worker had done none of the above but was fired because of “guilt by association”; her fiancé, who worked for the same company, was fired after he reported a claim for sexual harassment. Subsequently, the employer fired her as well. This is not an uncommon scenario. Frequently, employers feel that an employee has been tainted by a friendship with a co-worker who was discharged for cause and that, if she remains employed, she might attempt to obtain access to confidential information or to destroy material evidence. Employer beware! One classic element is the “nexus” or timeline between a complaint of discrimination and discharge.
Plaintiffs’ counsel routinely use the strategy of suing for retaliation along with the assertion of discrimination in the knowledge that, even if the main cause of action fails, the retaliation claim may survive and be quite profitable on its own.
Do you have any anti-retaliation policy? Do you know what actions can be interpreted as retaliatory? And, if you have a policy, (1) do you know if it’s “good enough, and (2) how are you disseminating it and making your position known to workers? It is no longer enough to include it in your employment handbook.
Have a question or comment?
Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.
Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.