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Can the company that I work for retaliate against me for reporting discrimination or harassment at work?

Best Employment Lawyer Answer: Recently, our employment discrimination lawyers blogged about retaliation claims. (Best Law Read: Why Retaliation Is The Easiest Employment Claim; Why Reporting Sexual Harassment Is Critical; What Happens If My Job Retaliates Against Me For My Reporting Wage Violations?). As we explained all employment laws contain provisions that prohibit employers from retaliating against employees who oppose, report, or participate in investigation regarding a violation of that statute by the employer, or where applicable, request a right under that statute. Retaliation occurs when the employer takes any adverse action against an employee that would reasonably dissuade that employee or employees of engaging in a similar protected activity. These employment statutes include: Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act of 1967 (“ADEA”), the Pregnancy Discrimination Act of 1978 (“PDA”), the Fair Labor Standards Act (“FLSA”), and Family and Medical Leave Act (“FMLA”).

In response to these blogs, many many employees been calling to figure out whether the actions taken against them for reporting sexual harassment, race or gender discrimination, or seeking a workplace disability accommodation amount to an act of retaliation. Importantly, if you have reported discrimination or harassment, sought a disability accommodation, or used FMLA leave; and you feel that your employer is doing something to punish you, you should immediately contact the biggest and most experienced employees’ rights law firm that you can find. It is critical to have your case independently evaluated under the facts of your specific case.

That being said, our hard working employment law attorneys have gathered a few more examples of retaliation for you …

What are examples of unlawful retaliation at work?

Best Wrongful Termination Attorney Answer: The obvious examples of unlawful retaliatory actions include wrongful termination, failure to promote, demotion, and suspension of an employee, particularly without pay. But that is not all. Unlawful retaliatory actions can include disciplinary warnings or reprimands, unfavorable transfers, negative or lowered evaluations, pay reductions, withholding of essential training, or reduction of sales leads. Let’s look at some of the less obvious and common examples.

In Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69, 126 S. Ct. 2405, 2415–16, 165 L. Ed. 2d 345 (2006), the United States Supreme Court held that “A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.”

In Czekalski v. Peters, 475 F.3d 360, 364 (D.C.Cir.2007), United States Court of Appeals for the District of Columbia held that “withdrawing an employee’s supervisory duties … constitutes an adverse employment action.”

In Hicks v. Baines, 593 F.3d 159, 169 (2d Cir. 2010), the United States Court of Appeals for the Second Circuit held the punitive assignment of work scheduling as sufficient to state a case for retaliation:” It is alleged that Baines intentionally adjusted shift times, break times, work locations, and work assignments (specifically, requiring plaintiffs to work alone). According to Hicks’s affidavit, Baines ‘purposefully altered [Hicks’s] work schedule … by shortening [his] off-duty time between workdays’ and by having ‘mandatory training sessions at which [Hicks’s] presence was required during the eight hours [Hicks] had off between the assigned shifts.’” (Alterations in the original).

In Mogenhan v. Napolitano, 613 F.3d 1162, 1166 (D.C. Cir. 2010), the United States Court of Appeals for the District of Columbia held that overloading a complaining employee with work can state a claim for retaliation: “Mogenhan states that less than one month after her supervisor published her complaint to her colleagues, he increased her workload to five to six times that of other employees, indicating that he was doing so ‘to keep me too busy to file complaints.’ A reasonable employee might well be dissuaded from filing an EEO complaint if she thought her employer would retaliate by burying her in work.”

In Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 31 (1st Cir. 2011), the United States Court of Appeals for the First Circuit held: “Although Pérez-Cordero did not suffer a tangible employment detriment in response to this protected activity, such as a retaliatory firing, we have previously held that the escalation of a supervisor’s harassment on the heels of an employee’s complaints about the supervisor is a sufficiently adverse action to support a claim of employer retaliation.”

In Millea v. Metro-N. R. Co., 658 F.3d 154, 165 (2d Cir. 2011), the United States Court of Appeals for the Second Circuit held that “a letter of reprimand would deter a reasonable employee. … A formal reprimand issued by an employer is not a ‘petty slight,’ ‘minor annoyance,’ or ‘trivial’ punishment; it can reduce an employee’s likelihood of receiving future bonuses, raises, and promotions, and it may lead the employee to believe (correctly or not) that his job is in jeopardy. A reasonable jury could conclude as much even when, as here, the letter does not directly or immediately result in any loss of wages or benefits, and does not remain in the employment file permanently.”

In Halfacre v. Home Depot, U.S.A., Inc., 221 F. App’x 424, 433 (6th Cir. 2007), the United States Court of Appeals for the Sixth Circuit held that “markedly lower performance-evaluation scores that significantly impact an employee’s wages or professional advancement are also materially adverse,” and thus, could support a retaliation claim.

In Szeinbach v. Ohio State Univ., 493 F. App’x 690, 694-96 (6th Cir. 2012), the United States Court of Appeals for the Sixth Circuit held that a jury could find emailing journal editor and professors at other universities accusations of academic research misconduct by the complaining employee , made in emails to a journal editor and professors at other universities was materially adverse.

In Passer v. Am. Chem. Soc., 935 F.2d 322, 331 (D.C. Cir. 1991), the United States Court of Appeals for the District of Columbia further held that an employer’s cancellation of a symposium in honor of retired employee who filed ADEA charge could be retaliatory: “we find that the District Court erred in holding that the cancellation of a major public symposium in an employee’s honor cannot be an act of retaliation as intended by the ADEA.”
In Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1532 (11th Cir. 1990), the Eleventh District Court of Appeals held that retaliation can be found post-employment where the old employer attempts to convince the new employer to fire the employee: “In our view, however, the distinction between a blacklisting that prevents a former employee from obtaining a new job and similar conduct that causes him to lose a new job is meaningless.”

Likewise, in Dunlop v. Carriage Carpet Co., 548 F.2d 139, 147 (6th Cir.1977), the United States Court of Appeals for the Sixth Circuit further held that that an employer retaliates when informing an employee’s prospective employer that he had previously filed a Title VII claim: “Defendant’s former employees could be severely handicapped in their efforts to obtain new jobs if the defendant should brand them as ‘informers’ when references are sought.”

Similarly, in E.E.O.C. v. L.B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997), the United States Court of Appeals for the Third Circuit held that negative job references can be sufficient to establish a claim of retaliation even when such conduct did not prevent the employee from getting the job. Specifically, the employer argued that in “a case in which a plaintiff alleges denial of a reference is retaliatory, the plaintiff must demonstrate that the employer’s denial of the reference caused an adverse employment action,” specifically that the prospective employer would have hired the employee but for the absence of the reference. The Third Circuit Court of Appeals rejected this argument: “An employer who retaliates cannot escape liability merely because the retaliation falls short of its intended result.”

In Berry v. Stevinson Chevrolet, 74 F.3d 980, 987 (10th Cir. 1996), the United States Court of Appeals for the Tenth Circuit affirmed the finding of retaliation where the employer initiated a criminal investigation for theft and forgery: “it to be more probable than not that Stevinson and others in management at Toyota West caused Szekula to initiate the criminal complaint … for the purpose of retaliating against Reynolds for his having filed a discrimination charge with the EEOC. The sequence and timing of these events, including Szekula’s delay in going to the authorities, is sufficient probative circumstantial evidence that Toyota West and Stevinson used and encouraged Szekula to initiate this investigation and prosecution.”

In Aviles v. Cornell Forge Co., 183 F.3d 598, 604 (7th Cir. 1999), the United States Court of Appeals for the Seventh Circuit held that employer engaged in retaliation by that falsely reporting to the police that complaining employee had a gun and had threatened to shoot his supervisor, which caused the police injure the employee so severely he was unable to work for six weeks. “His employer engaged in further retaliation … when he returned to work after the suspension and was denied overtime when all other employees on his shift were allowed to take it.”

In Dixon v. Int’l Bhd. of Police Officers, 504 F.3d 73, 84 (1st Cir. 2007), the United States Court of Appeals for the First Circuit affirmed a jury verdict finding retaliation was taken against the employee where the president of the employer announced on television program that the employee was unfit for her job and implying that the employee would pay a price for her discrimination claim. Specifically, the president “turned on Dixon, describing her as unfit for her job: ‘Guess where they have that girl working? And she admits, admits, mind you, to the old four letter word. Course, I wouldn’t dare use it. And she, she is working in a school with children. God forbid.’ He repeatedly insinuated that Dixon would pay a cost for pressing her discrimination claims; for example, he argued that Dixon was the only officer who should be suspended and closed one segment of his show by warning, ‘that girl who made these fabrications, she’s in trouble, she’s in trouble, she’s in trouble.’

And, of course, one of my favorites is Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 347-48 (6th Cir. 2008), where the United States Court of Appeals for the Sixth Circuit held that setting fire to the complaining employee’s car and threatening to “kill the bitch” satisfied the retaliation claim requirement for an adverse action. I’m pretty sure that would dissuade a reasonable worker from complaining or engaging in protected activity.

How do I sue my job for unlawful retaliation?

Best Employment Lawyer Answer: It is really quite simple to start the process. Pick up the phone and call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). You can also submit a confidential submission on this website. Our employment law lawyers in Cleveland, Columbus, Detroit, Toledo, Cincinnati and Raleigh focus only on representing employees like you. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


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