Retaliation

EMPLOYMENT ALERT

RETALIATION!

By Karen A. Khan, Esq.

You know about discrimination in employment. Chances are that you, or someone you know has been discriminated against on the job. But, how many of you have complained about it to your employer, to the EEOC, or to your State agency charged with combating workplace discrimination? And how many of you have felt negative repercussions on the job because you complained?

Retaliation by employers against employees who complain of workplace discrimination is as real as discrimination itself. It also violates both federal and state anti-discrimination laws! In fact, the EEOC received almost 33,000 charges of retaliation discrimination in fiscal year 2008 alone. That is, nearly one out of every three charges of discrimination filed with the EEOC alleges that the employer retaliated against the employee who complained of discrimination. Take note employers! When an employer takes an 'adverse action' against a 'covered employee' because he or she engaged in a 'protected activity', chances are that the employer is engaging in illegal retaliation.

The terms 'protected activity', 'covered employee', and 'adverse action' are defined by case law. Generally, 'protected activity' occurs when an employee opposes an employment policy or practice believed to be discriminatory, such as complaining to the employer that you or another employee are being discriminated against. But, this opposition must be based on a reasonable, good faith belief that the policy or practice you are complaining about, violates the employment discrimination laws. Baseless complaining and whining will not do.

'Protected activity' also occurs when an employee participates in an employment discrimination proceeding, such as filing a charge of discrimination, cooperating with an internal investigation of alleged discrimination, being a witness in an EEO investigation or court case, or asking for a reasonable accommodation for your disability or religion. If you have engaged in the 'protected activity' described above, then most likely, you are a 'covered employee' and are protected by law from adverse employment actions.

Just because some employees may be protected from adverse actions doesn't mean that their employers will always do the right thing. In fact, the statistics outlined above show the exact opposite. Employers take 'adverse actions' against employees all the time! These actions usually take the form of termination, demotion, denial of promotion, threats, unjustified negative references, increased surveillance, suspension, reprimands, harassment, negative evaluations, denial of job benefits, or other adverse treatment. Petty slights, stray negative comments, or discipline that is justified and based on poor work performance are not adverse actions in the context of a retaliation claim.

If you are a covered employee who has engaged in protected activity and suffered an adverse employment action you win, right? Not so fast. Any employee who claims retaliation must prove that there is a 'causal connection' or 'causal link' between the protected activity and the adverse action. Put simply, the employee has to show that the employer took the adverse action because he or she engaged in protected activity. It is very rare that there will be direct evidence of an employer's retaliatory motive. Instead, most retaliation cases are proven by circumstantial evidence of the employer's retaliatory motive. In those cases, the employer either fails to provide a legitimate non-retaliatory reason for the challenged adverse action, or the employee proves that the reason given by the employer is a pretext for retaliation.

Whether you are an employer who is faced with a possible retaliation claim, or an employee who has been retaliated against, it is important to understand your rights and obligations in the workplace. Times are tough enough without being subjected to retaliation discrimination or a retaliation lawsuit. That said, regardless of how tough the job market is, and regardless of how much employees want to hang on to their jobs in these trying times, no employee should be afraid to step up, complain and put their employer on notice of workplace discrimination for fear of retaliation.

The contents of this Employment Alert are intended for informational purposes only and must not be considered as legal advice.

Karen A. Khan is a local attorney and litigator representing employers and employees in all areas of employment law who has represented both large corporations and individual employees alike in employment discrimination matters, and who has conducted litigation nationwide.

The Khan Law Group, PLLC is a Washington, D.C. based employment law firm representing corporate clients as well as individual employees with employment issues in Washington DC, Maryland, Virginia, and nationwide. The Group is dedicated to providing the highest calibre of personalized legal services and representation.

Contact The Khan Law Group, PLLC at 202-290-1670, for a confidential consultation.