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What law protect employees from retaliation at work?

There are several federal employment statutes protect employees from discrimination, harassment, and retaliation relating to various protected classes. Specifically, Title VII of the Civil Rights Act of 1964 prohibits discrimination and harassment based on race/color, national origin, religion, gender/sex (including pregnancy) and LGBTQ+ status (including sexual orientation and gender identity. Likewise, the Americans with Disabilities Act (“ADA”) and Age Discrimination in Employment Act of 1967 (“ADEA”) protect older workers and workers that have a disability or serious medical condition from discriminating or harassing employers. These same laws protect not only these employees, but any employee that reports, opposes, or participates in an investigation regarding discrimination or harassment based on these protected classes.

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How do you prove unlawful workplace retaliation?

In order to establish a claim for retaliation under Title VII and other employees’ rights laws, the employee needs to present sufficient evidence that: (1) the employee participated in a protected activity – such as opposing, reporting, or giving a witness statement regarding discrimination or harassment; (2) the employer’s knowledge of that protected activity; (3) an adverse employment action; and (4) a causal connection between that protected activity and that adverse employment action.

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How do you show that an employer had knowledge of a protected to show retaliation?

An employer’s knowledge may be shown through either “general corporate knowledge” of the protected activity or the defendant’s agents having knowledge of the protected activity. To that end, an employee’s complaint to an officer of the company or a human resources representative sufficiently communicates the concern to the employer for purposes of satisfying the knowledge element of the prima facie case of retaliation. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir. 2013); Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000). In Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir.1996), the United States Court of Appeals for the Second Circuit held that the requirement was “easily proved” by showing that the corporate entity was aware of employee’s complaints.

In Zann Kwan, the United States Court of Appeals for the Second Circuit held on this point:

This case is a good illustration of why corporate knowledge is sufficient for purposes of a prima facie case of retaliation. If that were not true, a simple denial by a corporate officer that the officer ever communicated the plaintiff’s complaint, no matter how reasonable the inference of communication, would prevent the plaintiff from satisfying her prima facie case, despite the fact that the prima facie case requires only a de minimis showing.

Id. at 844–45.

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What is the best way to report discrimination or harassment at work?

The best way to report or oppose discrimination or harassment at work is to report such conduct in writing to management or human resources (HR) in a documented manner. While verbally reporting race discrimination or sexual harassment is sufficient to trigger an employee’s protections under Title VII, the better and easier to later prove manner of reporting is make the report or opposition in a written or electronic format that can be used as evidence later. For example, employees will have proof for their complaint if it is sent via email, text message, or fax – especially if a read or received receipt is kept. Alternatively, employees can video or take pictures of submitting a written complaint into a mail slot, under a door, or left on the desk of a manager or HR representative.

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What will happen if I don’t have direct evidence of my employer’s knowledge?

This was the situation recently considered in Bhatti v. Physician Affiliate Group Of New York, P.C., No. 21-2522, 2022 WL 17543533 (2d Cir. Dec. 9, 2022). Harjinder Bhatti sued her employer, Physician Affiliate Group of New York, P.C. (“PAGNY”), asserting claims for unlawful retaliation in violation of Title VII. By way of background, Bhatti previously filed an Equal Employment Opportunity Commission (“EEOC”) and then a lawsuit against her former employer, Corizon. (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).

After this lawsuit was settled, PAGNY took over for Corizon under a city contract. As part of the takeover, PAGNY did not hire Bhatti to remain at her position. This lead to the retaliation claim.

For some reason that is not clear, Bhatti did  not argue on appeal her employer had general corporate knowledge of her complaints, which resulted in that argument being waived. Instead, Bhatti argued that circumstantial evidence established, or at least created a question of fact for that jury, that her supervisor, Michael Latunji, knew about her prior discrimination complaint. However, the undisputed evidence was that that Bhatti never informed Latunji directly. Moreover, the supervisor denied knowing about of Bhatti’s complaints, and that Bhatti herself testified that she did directly not know whether Latunji knew about her discrimination complaints.

Faced with this obstacle, Bhatti argue to that Court should infer knowledge by her supervisor because (1) Latunji’s testimony contained inconsistencies, (2) her prior complaint specifically mentioning Latunji, and (3) the timing of the retaliatory adverse actions should create an inference that Latunji knew of her complaints.

The United States Court of Appeals for the Second Circuit rejected Bhatti’s arguments:

Bhatti’s arguments are insufficient to show knowledge under Title VII …  First, even if there were inconsistencies, Bhatti has not produced any evidence to rebut Latunji’s testimony that he did not know about her complaints.  Second, the fact that the EEOC charge and Corizon lawsuit mention Latunji in an allegation is not enough to show Latunji’s knowledge. Bhatti conceded that Latunji was never involved in the hiring process for the Physician Central Intake position that was at issue in her EEOC charge. The Corizon lawsuit did not name Latunji as a party. Bhatti argues that Corizon’s response to the lawsuit gives rise to an inference that Corizon must have consulted or informed Latunji of the lawsuit. But Corizon’s answer to the complaint alone does not permit a reasonable inference that Latunji was informed about a lawsuit by Bhatti against Corizon. Third, Bhatti filed her EEOC charge against Corizon approximately eighteen months before PAGNY made the allegedly retaliatory decision not to hire her and over two years before PAGNY terminated her. She filed the Corizon lawsuit approximately three months before hearing of PAGNY’s decision and over a year before PAGNY terminated her. This timing does not support an inference of knowledge, and, even if it did, it would barely support an inference of causation. See, e.g.Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d 545, 554–55 (2d Cir. 2001) (holding that two to three months was sufficient for an inference of causation but noting that there is no bright-line rule).

Id. at *2.

Do I have a claim for retaliation under Title VII?

Best Employment Lawyer Answer: If you wondering whether you have been wrongfully fired or retaliated against because you complained to HR or management about race, national origin, gender, age, religion or disability discrimination or sexual harassment, it would be best for you to call the right attorney to schedule a free and confidential consultation to get an evaluation specific to your particular situation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Call our lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are committed to helping employees in need.

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