Can My Company Retaliate Against Me For Opposing Discrimination By A Manger Or Supervisor?
Best Wrongful Termination Lawyer Answer: As frequent readers of this employees’ rights blog know, if you report discrimination, harassment, wage and hour violations, or certain other illegal activities, your employer is prohibited from taking “adverse action” against you in retaliation for your legally-protected report or opposition. Report race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin and Title VII of the Civil Rights Act of 1964 protects you from retaliation. When you oppose age or disability discrimination, the Americans with Disabilities Act (“ADA”) and Age Discrimination in Employment Act of 1967 (“ADEA”) makes it unlawful for your boss or manager to turn around and wrongfully fire you. But wrongful termination is not the only from of retaliation that employees are protected from. These employment statutes protect employees from any time of adverse action – which means taking an action that would be materially adverse to a reasonable employee or job applicant or that could well dissuade a reasonable worker from making a complaint of discrimination or otherwise opposing such conduct. (Best Law Read: What Are Examples Of Unlawful Retaliation At Work?; Stop Race Discrimination At Work. We’ll Protect You).
What is an example of workplace retaliation?
Best Employees’ Rights Attorneys’ Answer: In today’s blog, we will explore what retaliatory acts constitute a prohibited “adverse action.”
Today’s example comes from Illinois, in the case of Nazariy Lesiv v. Illinois Central Railroad Company, 39 F.4th 903 (7th Cir. 2022). Lesiv works (notice the present-tense verb) for Illinois Central Railroad Company (“Illinois Central”), operating railcars. Lesiv’s brother also used to work for Illinois Central but was terminated in 2016. In July 2017, Lesiv’s brother filed a lawsuit in state court against Illinois Central, alleging discrimination based on national origin, perceived sexual orientation, and/or race, and retaliation for opposing the discrimination. In April 2018, Lesiv testified as a witness in his brother’s lawsuit.
In July 2018, less than three months after he testified in his brother’s discrimination lawsuit, Lesiv’s supervisor, Anthony Grayer, got into an argument with Lesiv at work and decided to punish Lesiv by giving him a dangerous assignment, the “RIP track.” The “RIP track” involves heavy repairs, like replacing wheels on railcars. Employees are assigned in teams of two to do the task because it is so dangerous. However, Lesiv testified that the supervisor on duty instructed him that Grayer had said that Lesiv had to do the task alone. (Illinois Central denied this, but, for procedural reasons, the court was required to assume Lesiv’s version of events at this stage of the case.) Lesiv refused the dangerous assignment and was given a two-day unpaid suspension.
It is important to note that Lesiv’s employment was never terminated. For a long list of reasons, most people do not sue their employer and continue to work there, but Lesiv still works for the company. In fact, Illinois Central ended up giving him backpay for the time he was suspended, probably in an attempt to argue in court that he suffered no loss. Lesiv filed a case against Illinois Central, alleging that the company gave him the RIP track assignment, and then a two-day unpaid suspension, in retaliation for his brother’s case.
In Lesiv v. Illinois Central, the United States Court of Appeals for the Seventh Circuit pointed to precedent that states that an employer cannot take a retaliatory action “that a reasonable employee would find to be materially adverse such that the employee would be dissuaded from engaging in the protected activity” (Emphasis added).
The Court went on to hold that the standard for retaliation is easier for a plaintiff to satisfy than the standard for the underlying discrimination itself. By contrast, for discrimination claims (as opposed to retaliation claims) plaintiffs have to show “discriminatory actions that affect the terms and conditions of employment.” (Best Law Read: Why Retaliation Is The Easiest Employment Claim).
Can an unpaid suspension dissuade an employee from engaging in a protected activity?
Best Employment Retaliation Lawyer Answer: The Seventh Circuit Court of Appeals answered this question with a clear “Yes.”
Illinois Central made two main arguments to say the suspension was not an adverse action: (1) It was only two days long; and (2) Even though the suspension was initially unpaid, Illinois Central eventually gave Lesiv backpay for the time. The Court was not persuaded by these arguments. The Court decided that even a very short unpaid suspension is an adverse action. The Court also decided that an employer cannot avoid liability just by paying a suspended employee after the fact because such conduct could still dissuade other employees from stepping forward to report or oppose unlawful discriminatory practices.
Will dangerous assignments be considered retaliation?
Best Employees’ Rights Law Firm Answer: Yes. Absolutely, Yes. If this seems pretty obvious, it is. If you employer retaliates by putting you into a situation where you could be killed or severely injured, of course it will deter you from reporting discrimination. In Lesiv v. Illinois Central, the Seventh Circuit agreed, even if the employee never actually worked the dangerous assignment:
Such an unusual and dangerous work assignment can qualify as a materially adverse action. We have held that a jury could find that retaliating against an employee by assigning her unusually dangerous duty would deter a reasonable employee from engaging in protected activity. In Lewis v. City of Chicago, 496 F.3d 645 (7th Cir. 2007), a police officer sued for retaliation. She offered evidence that after she complained of discrimination, she was singled out for inherently more dangerous work assignments. We reversed summary judgment for the employer, finding that the dangerous assignments could amount to materially adverse actions. Id. at 655. Similarly here, by providing evidence that he was singled out for an unusually dangerous work assignment, Lesiv met his burden for defeating summary judgment on this issue. Accord, Hicks v. Baines, 593 F.3d 159, 170 (2d Cir. 2010) (reversing summary judgment for employer; change in work schedule that resulted in more dangerous work assignment could qualify as materially adverse employment action).4
Illinois Central’s attempt to distinguish Lewis is not persuasive. It points out that the Lewis plaintiff actually worked the dangerous assignments while Lesiv never ended up completing his. The argument overlooks why Lesiv did not end up working the RIP track by himself: he refused and was later suspended for that refusal. Granted, Duggan ultimately suggested that Lesiv work the light track, but that was not until after Lesiv refused to work the RIP track alone and demanded to speak to someone other than the relief supervisor about the situation. Illinois Central proposes a rule under which, if an employee refuses a dangerous retaliatory assignment, the employer could avoid liability as a matter of law even if the employer then punished the employee for refusing the dangerous retaliatory assignment.
Because Lesiv refused to perform the RIP assignment, Illinois Central argued that they never took the adverse action. The Court did not buy this silly argument because they still ordered him to.
Stay tuned for the other two parts of this series. (Best Law Read: Employers Cannot Retaliate Against Spouses, Siblings, Significant Others).
What should I do if I think my employer is retaliating against me?
Best Employment Lawyer Answer: If you feel that you are facing harassment for complaining about discrimination, harassment, wage violations, or other illegal activities by your employer, the best course of action you can take is to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?).
At Spitz, The Employee’s Law Firm, you will meet with an attorney, who will be able to tell you what your legal rights are and the best way to protect them. Call our top attorneys in Cleveland, Columbus, Cincinnati, Toledo, Ohio, Detroit, MI, and Raleigh, NC for help and we will be there for you.
The workplace discrimination materials available at the top of this race, gender, national origin, religion and age discrimination page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney Brian Spitz, or any individual attorney.