Best Ohio Employment Discrimination Attorney Answer: What can I do if I was fired today after reporting race discrimination to HR? Can I sue my boss for retaliating against me for reporting discrimination? Does it matter if I was the one who was discriminated against, or am I protected for reporting discrimination against someone else?
Our retaliation attorneys are routinely asked by the victims of unlawful discrimination (that is, discrimination based on race, gender, sex, pregnancy, national origin, disability, religion, military status, ancestry, or age) whether they should complain about it. Although many of these employees are afraid of “rocking the boat,” and they fear that a complaint will lead to termination, the instinct to keep quite should absolutely be ignored. The more an employee complains about this sort of conduct, the better off they actually are – especially if it is put in writing.
First, some perspective. Is a job where you are discriminated against worth protecting? And, if your employer is the kind of employer that would fire someone for complaining about discrimination, do you really want to work there? Now, I know that is easier to say than to do; many cannot fathom possibly losing their paycheck. But, nothing is going to change if you don’t speak up, either. So, your choice is to either to just tolerate the discrimination (and possibly get fired anyways), or to speak up. It is possible that HR or the boss is not aware that a manager or supervisor is engaging in race or gender discrimination or that he or she is sexually harassing you. Your employer then only has three choices:
1. Do something to fix the problem;
2. Do nothing; or
Employers who do anything but the first option can face substantial liability for ongoing discrimination and retaliation. Under Ohio law, particularly R.C. § 4112.02(I), it is an unlawful, discriminatory act for any person to “to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing…”
It does not matter if you are complaining about discrimination against you, or against a co-worker. The statutory language is very clear — one does not have to be a victim of discrimination to oppose discrimination, or to “testif[y], assist, or participate in any manner in any investigation, proceeding, or hearing.” Indeed, if a co-worker testifies truthfully at a deposition for another employee’s discrimination case, and the employer retaliates because it hurts its defense of the case, that employee-witness is protected under Ohio law.
Of course, the more common scenario involves the victim of discrimination being terminated after they complain about it. Can the employee sue both for the discrimination and the retaliation? Without a doubt, yes.
Ohio law and Title VII of the Civil Rights Act of 1964 make it unlawful for an employer to fire someone “because” of their protected status, or “because” they complained about discrimination. In fact, proving the retaliation claim may actually be easier than proving the underlying discrimination claim. And, an employee does not need to win on the unlawful discrimination claim in order to prevail on the retaliation claim,
In University of Texas Southwestern Medical Ctr. v. Nassar, the United States Supreme Court found that the presence of the word “because” in the federal statute meant that an employee has to prove “but-for” causation. What this means is that an employee who has been unlawfully terminated has to show, by a preponderance of the evidence, that but-for their protected characteristic, they would not have been terminated, or that but-for their complaint about discrimination, they would not have been terminated.
As a result of this reasoning, some employers have tried to argue that as a result of but-for causation, an employee cannot sue for more than one thing. They argue that an employee cannot claim they were fired because of their protected characteristic and because they complained, because the argument that the protected characteristic was factor in the termination undercuts the employee’s ability to establish but-for causation on the retaliation claim. The problem is, this argument confuses “but-for” causation for “sole cause” causation, which is a different and higher standard. And, this standard would surely defy the intent of the legislature. Who can argue with a straight face that the legislature intended to limit employees who are discriminated against and retaliated against to choose only one unlawful act to sue upon? That would be like telling a prosecutor that even though the defendant committed several crimes, she can only prosecute him for one of them.
In Jones v. Oklahoma City Schools, the Tenth Circuit Court of Appeals explained that “but-for” causation simply is not the same as “sole cause” causation:
OKC’s argument is flawed on several levels, but we need address only one: It conflates two separate standards for causation. The ADEA, like other anti-discrimination statutes, includes a causation requirement. It prohibits employers from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1) (emphasis added). The statute, however, does not define the phrase “because of,” and before Gross, it was unclear which causal standard applied. Gross clarified that the ADEA requires “but-for” causation. 129 S.Ct. at 2351. Consequently, to succeed on a claim of age discrimination, a plaintiff must prove by a preponderance of the evidence that her employer would not have taken the challenged action but for the plaintiff’s age. Id. OKC argues that in mandating but-for causation, Gross established that “age must have been the only factor” in the employer’s decision-making process.
We disagree. The Tenth Circuit has long held that a plaintiff must prove but-for causation to hold an employer liable under the ADEA. See EEOC v. Prudential Fed. Sav. & Loan Ass’n, 763 F.2d 1166, 1170 (10th Cir.1985) (quoting Perrell v. Financeamerica Corp., 726 F.2d 654, 656 (10th Cir.1984)). Moreover, we have concluded that this causal standard does “not require [plaintiffs] to show that age was the sole motivating factor in the employment decision.” Wilkerson v. Shinseki,606 F.3d 1256, 1266 (10th Cir.2010) (quotations omitted). Instead, an employer may be held liable under the ADEA if other factors contributed to its taking an adverse action, as long as “age was the factor that made a difference.” Id.; accord Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) 1278*1278 (requiring an ADEA plaintiff to show that age had a “determinative influence on the outcome” of her employer’s decision-making process). Grossdoes not hold otherwise. Accordingly, Gross does not disturb longstanding Tenth Circuit precedent by placing a heightened evidentiary requirement on ADEA plaintiffs to prove that age was the sole cause of the adverse employment action.
As a result, there is no credence to the suggestion that having another claim, such as discrimination claim, means that an employee cannot prove a retaliation claim. All the employee has to do is show that their complaint about discrimination was a determinative factor – that they would not have been fired but-for it. And, a termination can have more than one but-for cause. Indeed, but-for the underlying discrimination, the employee would not have had anything to complain about.
If you have been retaliated against for reporting discrimination, your best bet is to call the right attorney. Retaliation include being harassed, fired, wrongfully terminated, being treated differently than others, demoted, wrongfully disciplined, and denied wages. If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
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