John Ford said that “revenge proves its own executioner.” That is especially true in employment law where employers often find themselves in a much worse situation because they chose to get back at employee for reporting discrimination to human resources or complained about not being properly paid overtime wages.
Our employment attorneys have repeatedly proclaimed that retaliation is often easier to prove than the original discrimination, wage, accommodation or other employment claim. (Best Law Read: Proving Discrimination And Retaliation Claims Under Title VII; Retaliation Is Still Easier To Prove Than Discrimination; Why Retaliation Is The Easiest Employment Claim).
What is retaliation at work?
Employee’s Rights Law Firm Answer: Retaliation against an employee occurs when an employer takes an adverse action taken against employee who has participated in a protected activity, like reporting race or gender discrimination or filing a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”). (Best Law Read: Don’t File With The EEOC On Your Own; It’s Bad To File With The EEOC Without A Lawyer; The EEOC Will Not Help You Properly Fill Out The Charging Form; Read This Before Filing An EEOC Charge). To establish an adverse action, the employee must demonstrate that the supervisor, boss, manger, or owner’s conduct “might have dissuaded a reasonable worker” from opposing, reporting or participating in an investigation into the underlying reported violation of the law.
What laws protect me from retaliation at work?
Best Employment Lawyer Answer: Legislatures understood that it was not enough to simply give employees certain employment rights if they could be fired for seeking to enforce those rights of report violations. To that end, all significant employee’s rights laws have an anti-retaliation provision, including the Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act of 1967 (“ADEA”), and the Pregnancy Discrimination Act of 1978 (“PDA”). If your manger wrongfully fired you for reporting or opposing discrimination or harassment based on race, religion, gender, pregnancy, sexual orientation, gender identity, national origin, or disability, these laws give you a legal recourse. (Best Law Read: Can I Be Fired For Reporting Discrimination To HR?). If you complained that you were not paid overtime at time and half after working a 50-hour workweek, the Fair Labor Standards Act (“FLSA”) makes it unlawful to demote or fire you. (Best Law Read: What Happens If My Job Retaliates Against Me For My Reporting Wage Violations?). You cannot be fired or refused a promotion as a result of taking medical leave under the Family and Medical Leave Act (“FMLA”). (Best Law Read: What Is The Difference Between FMLA “Interference” And “Retaliation”?). Beyond these federal laws, may states have passed laws protect employees being retaliated against because they filed a Workers’ Compensation claim or because they blew the whistle on unlawful or dangerous activities. (Best Law Read: Can I Sue If I Was Fired For Filing A Workers’ Compensation Claim? I Need A Lawyer!).
What acts by my supervisor or manager can be considered retaliation?
Top Wrongful Termination Attorney Answer: The most common instances of illegal retaliatory conduct include wrongful termination, failure to promote, demotion, and suspension of an employee, particularly without pay. However, illegal retaliatory acts by an employer may also be found in disciplinary warnings or reprimands, unfairly given bad reviews, undesirable transfers, reduced pay or hours, blocking training needed for advancement, or the slowing or filtering of good sales leads. (Best Law Read: What Are Examples Of Unlawful Retaliation At Work?; Can My Boss Give Me Dangerous Assignments For Reporting Discrimination?).
What is the cat’s paw theory?
Employee’s Rights Lawyer Answer: The Cat’s Paw Theory applies in situations where there are layers of supervision or management between the employee and the ultimate decision maker. Cat’s Paw Theory retaliation is when a manager, supervisor or any other employee who does not have the power to fire or otherwise take an adverse action against a worker influences the ultimate decision maker to unwittingly take that adverse action. To prevent this tricky maneuver, the Cat’s Paw Theory makes clear that an employer will still legally liable even if the ultimate decision makers had no biased intent, but others improper biases impacted the final decision. (Best Law Read: What Is The Cat’s Paw Theory Of Liability?; Can I Be Fired For Poor Job Performance After Using FMLA?).
What’s an example of the cat’s paw theory?
Best Lawyer For Wrongfully Fired Answer: Let’s take a look at Huff v. Buttigieg, 42 F.4th 638 (7th Cir. 2022). In that case, Huff’s manager wanted her to enroll in Alcoholics Anonymous (“AA”), but Huff objected to AA for religious reasons. Huff’s manager, who did not have the authority to discipline or fire Huff, was not pleased that Huff objected to AA and dismissed Huff’s religious objection.
After Huff filed her Charge of Discrimination against her supervisor for religious discrimination, the supervisor submitted a report to a manager with the authority to fire Huff, stating that Huff was not complying with her required rehabilitation plan because Huff was emailing questions about her medication instead of calling on the phone as required by the plan. Once the employer determined that Huff was “non-compliant” with her rehabilitation plan, termination was simply a mechanical process that followed, as the original supervisor planned. This is the cat’s paw in action.
What is pretext?
Workplace Rights Lawyer Answer: The United States Court of Appeals for the Seventh Circuit in Huff justly called the above scenario what it was – pretext, which means that the reason given for the termination was false or insufficient to justify the adverse employment action. (Best Law Read: How Do I Prove Pretext For My Wrongful Termination?; How Do I Prove That My Employer Lied About Why I Was Fired?; and Yes, Employers And Their Attorneys Lie). The court listed three tests to determine if the employer’s stated reason for the firing was actually pretext instead.
First, the employer may not use or enforce a policy in an objectively unreasonable manner. In Huff, the Seventh Circuit held that the termination for Huff’s alleged misconduct for sending emails instead of phone calls was so disproportionate to her conduct that it was like swatting a fly with a sledgehammer. Thus, this is a good example of pretext being a true but not sufficient reason.
Second, the Seventh Circuit in Huff noted that Huff had been given different instructions from different supervisors. One supervisor testified that he was surprised that the use of emails to report medication was not allowed. Another supervisor responded to Huff’s emails with further emails and did not object to Huff’s emails at all.
Third, the Seventh Circuit highlighted that the employer’s witnesses offered conflicting testimony about who made the decision to terminate Huff. As mentioned above, Huff’s supervisor did not have the authority to fire Huff and convinced another manager to do it. However, after the lawsuit, no supervisor wanted to take ownership of the decision to terminate Huff and instead pointed the finger back to the original supervisor who lacked the authority to fire Huff in the first place.
There are some important takeaways from the insight provided in this case. First, to the surprise of absolutely no one, employers will lie and falsely paint an employee in a bad light. (Best Law Read: Top Discrimination Lawyer Reply: What Should I Do If My Boss Lies About Why I Was Fired?; Employment Discrimination Question: What Is Pretext?); Can I Be Fired For Lies By My Racist Manager? I Need The Best Employment Discrimination Lawyer!). It is important to remember that getting the best employment law firm with experience in dealing with lying, cheating employers will help to protect you from this conduct.
How do I sue my employer after I was wrongfully fired today?
Best Employment Lawyer Answer: If you were fired today because of your race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, or disability, you can get the legal help that you need by picking up the phone and calling the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Ohio, Michigan and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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