The Employee’s Attorney: Employment Retaliation Lawyers
There are essentially two types of retaliation claims, oppositional and participation-based retaliation.
Let’s start with oppositional retaliation. Most employees are aware that under the federal Title VII of the Civil Rights Act of 1964 and the Ohio Fair Employment Practice Act, employers cannot discriminate or harass employees on the basis of their race/color, religion, sex /gender, or national origin. Likewise, the Americans with Disabilities Act (“ADA”) prevents discrimination and harassment based on an employee’s disability or perceived disability. And, age discrimination is unlawful under the federal Age Discrimination in Employment Act (“ADEA”) and under Ohio law at R.C. § 4112.02(N), R.C. § 4112.05, and R.C. § 4112.14. But, these laws do not stop at discrimination and harassment of employees. They also make it illegal for bosses, managers, and supervisors to retaliate against any person because that person opposed an unlawful discriminatory action or practice, made a complaint about discrimination, testified regarding such conduct, or assisted in any investigation, proceeding, or hearing related to complaints of discrimination.
Complaints about violations under the Fair Labor Standards Act (“FLSA”) for failure to pay minimum wage or overtime wages also are protected from oppositional retaliation by the employer.
It is important to recognize that these laws do not only protect the employees that fall within the designated protected class, but any person that opposes discrimination on the basis of a protected class, as well as those employees who participate in any investigation to complaints or opposition to alleged discriminatory conduct. As such, a White co-worker who reports a manager’s racial discrimination against a fellow Black employee would be protected from retaliation under these laws. Similarly, a 32-year-old manager that refuses to terminate two 50+-year-old employees to replace them with younger workers has engaged in protected activity and is legally protected from retaliation. And, a woman that sees and reports a boss sexually harassing another woman cannot be fired, demoted or have any adverse action taken against her.
Participation Based Retaliation
Participation based retaliation occurs when employees engage in legally protected activities and are retaliated against by a boss or manager because they did so. These participation-based anti-retaliation laws can be found in the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), the Family Medical Leave Act (“FMLA”), the Pregnancy Discrimination Act of 1978 (“PDA”), and Ohio’s Workers’ Compensation Retaliation laws (see R.C. § 4123.90). Under these laws, it is illegal for employers to retaliate against an employee that has chosen to exercise his or her rights under these statutes or complained that those rights were being infringed by the employer. For example, it would be against the law for an employer to retaliate against an employee for taking medical leave under the FMLA or requesting her maternity rights to express milk in a private room upon return to work from giving birth.
If you find yourself saying or searching any of the following terms, your best option is to call an experienced employment law lawyer, including those at Spitz, The Employee’s Law Firm:
- I was fired today after I reported my boss to HR for being racist.
- My supervisor put me on second shift after I complained that I was not being paid overtime.
- Can I sue my employer for retaliating against me for opposing race discrimination even though I’m White?
- My hours were cut after I asked for a room to express milk for my baby.
- I was fired when I refused to fire older workers and telling the owner that it was age discrimination.
- After I complained to HR about sexual harassment, my boss doubled my workload and told me that I should quit.
- My district manager gave me an unfair bad review because I reported gender discrimination on the company hotline.
- I was demoted after my wife complained about employment discrimination to the regional manager during her review.
- I refused to lie during an investigation into my boss’s religious discrimination and was fired three days later.
- After I complained about not being paid overtime, I wasn’t allowed to participate in training sessions that are needed to keep my job and for promotions.
- I want to sue my company for retaliating against me for reporting national origin discrimination to human resources.
- My boss fired my sister to punish me for complaining about minimum wage violations.
- My former employer is giving me bad references because I reported employment discrimination when I quit.
Employment laws can be very confusing especially when trying to figure them out right after being wrongfully fired. Again, the best thing for you to do is find the best employment lawyer that you can find and go over your particular set of facts.
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Frequently Asked Questions About Retaliation
When Should I Hire An Employment Lawyer? Should I Hire An Employment Discrimination Lawyer Before I Am Fired?
Retaliation Attorney: Do not wait. As soon as you think that there may be a problem at work or that you may be fired, your top priority should be to consult with the best employment law lawyer that you can. At Spitz, The Employee’s Law Firm, our attorneys do not bill hourly on most cases and will help you draft a letter to help you complain about illegal discrimination and instruct you how to report it at no charge. This way, should your employer retaliate against you, your retaliation case will be stronger.
What Constitutes Opposition To Employment Discrimination? How Do I Need To Complain About Race, Gender, Or Religious Discrimination In Order To Be Protected Under Anti-Retaliation Laws? Should I Complaint About Discrimination At Work In Writing?
Retaliation Attorney: As a practical matter, it is always best to complain or oppose employment discrimination; or request to participate in a protected activity in writing in a way that you can confirm was sent by you and received by your employer, including by email, fax, or even text message. This way, there is documented proof of such activity.
That being said, if you were fired based on a verbal complaint, or even a handwritten complaint form or note that only the employer has, you are not out of luck. For the most part, any time an employee communicates to the employer a belief that the employer has engaged in discrimination or harassment regardless of the manner that it is communicated, that employee is protected under employment laws from being retaliated against.
What Is A Retaliatory Act For Reporting Employment Discrimination Or Wage Violations? What Does My Boss Or Manager Have To Do For It To Be Considered Retaliation?
Retaliation Attorney: The real key legal question here is where the alleged adverse action would make it less likely for another person to similarly complain. This is a different and lesser type of conduct that is needed to prove an employment discrimination case. For a discrimination claim, adverse employment actions are defined as those that “materially affect the compensation, terms, conditions, or privileges of employment,” which would obviously include refusal to hire, demotion and termination. The definition of adverse action for a retaliation claim is broader than the adverse employment action needed for a discrimination claim. An adverse action for retaliation claims is an action that “is reasonably likely to deter employees from engaging in protected activity,” which also include demotions and terminations, but are just not limited to those employment actions. This distinction was addressed by the United States Supreme Court in Burlington N. & Santa Fe Ry. Co. v. White, where the Court held:Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses. “Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U. S. 288, 292 (1960). Interpreting the anti-retaliation provision to provide broad protection from retaliation helps assure the cooperation upon which accomplishment of the Act’s primary objective depends.
For these reasons, we conclude that Title VII’s substantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm …
The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm. … a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, “which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Rochon, 438 F. 3d, at 1219 (quoting Washington, 420 F. 3d, at 662).
We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 80 (1998); see Faragher, 524 U. S., at 788 (judicial standards for sexual harassment must “filter out complaints attacking ‘the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing’”). An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. …
We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters. … A schedule change in an employee’s work schedule may make little difference to many workers but may matter enormously to a young mother with school-age children. Cf., e.g., Washington, supra, at 662 (finding flex-time schedule critical to an employee with disabled child). 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. Hence, a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an “act that would be immaterial in some situations is material in others.” Washington, supra, at 661.
Want some examples? A manager “assigning more, or more burdensome, work responsibilities, is an adverse employment action.” Davis v. Team Elec. Co. Some courts have held that transferring job duties, or actions that may negatively impact the complaining employee’s compensation can constitute adverse actions. Fonseca v. Sysco Food Servs. of Ariz., Inc.; Yartzoff v. Thomas. Adverse actions can occur when the protected employee is excluded from meetings, seminars, and positions that would have made the employee eligible for salary increases. Strother v. S. Cal. Permanente Med. Group. Likewise, undeserved low-performance reviews or scores can be an adverse action. Yartzoff v. Thomas.
But, remember that not everything that a boss, manager or supervisor does after you complain or oppose discrimination will give rise to a viable employment claim for retaliation. For example, if your boss doesn’t stop by your office to say good morning every day anymore or you think that a supervisor is making faces at you, our lawyers would have a tough time proving a case of retaliation. However, if your boss takes you off the rotation for overtime opportunities or moves you to the third shift, give our attorneys a call.
Who Can I Sue For Retaliation At Work After I Report Sexual Harassment Or Other Types Of Employment Discrimination? Can I Sue My Boss Personally If He Or She Retaliates Against Me For Reporting Him To HR For Race, Gender, Or Age Discrimination?
Retaliation Attorney: In Ohio, the answer is yes. For purposes of discrimination and sexual harassment claims, under Ohio law, an “employer” is defined to include: the state, any political subdivision of the state, any person employing four or more persons within the state, and any person acting directly or indirectly in the interest of an employer. Thus, you can name your boss directly if you are making a claim under Ohio law. The same rights are not available under federal laws.
What If I Complained About Discrimination And There Did Not End Up Being Discrimination; Can My Employer Retaliate Against Me? Do I Lose My Retaliation Claim If I Lose My Discrimination Case?
Retaliation Attorney: You do not have to win your discrimination case to win the retaliation case. In fact, retaliation cases are often stronger claims than the underlying discrimination case and are often easier to prove. To make a claim for retaliation, an employee must have a “reasonable belief” that his or her employer, engaged in a discriminatory employment practice which leads to the complaint, whether or not the employer did, in fact, engage in discriminatory employment practice. The issue is not whether the employer, boss, manager, or supervisor actually engaged in an act of discrimination. Ohio courts use a “reasonable belief” standard, which means that belief would be held by a reasonably prudent person under the same or similar circumstances.
Can My Boss Retaliate Against My Family Or Friends If I Complain Or Oppose Discrimination?
Retaliation Attorney: Some bosses, managers, and supervisors think they are smarter than everyone else and reason that just because they cannot retaliate against one employee for reporting unlawful discrimination or using FMLA, he or she can make those close to that employee suffer. Well, this attempted end-around the anti-retaliation laws was squarely rejected by the United States Supreme Court in Thompson v. North American Stainless. In that case, the employer fired the plaintiff employee soon after it learned that his fiancée filed a gender discrimination complaint with the Equal Employment Opportunity Commission (“EEOC”). (See Top Employment Law Attorney: Do Not File With The EEOC Without Doing This First; File With The EEOC Or Get A Lawyer? Call The Right Attorney; Should I Get A Lawyer To Help Me File An EEOC Charge?; How Do I File An Employment Discrimination Charge With The EEOC? ; and Should I File With The EEOC On My Own? Call The Right Attorney). The Supreme Court held that the employer violated Title VII if it fired the employee in retaliation for his fiancée making a report to the EEOC, and that the employee would have a direct cause of action against the employer even though he did not directly oppose any unlawful discrimination or participate in any protected activity. Specifically, the Supreme Court held: “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”However, the line about who is protected from retaliation is not a clear bright line. As the Supreme Court further held: “We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in Burlington, 548 U.S., at 69, 126 S.Ct. 2405, ‘the significance of any given act of retaliation will often depend upon the particular circumstances.’ Given the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII’s anti-retaliation provision is simply not reducible to a comprehensive set of clear rules.”
Can I Sue For Retaliation If My Former Boss Is Doing Things Against Me Even Though I Don’t Work There Anymore? Are Bad References Retaliation That I Can Sue For?
Retaliation Attorney: Employment retaliation laws protect former employees from retaliation as well. To that end, your former boss generally cannot retaliate against you even after you were fired or quit. Several courts have allowed employees to state retaliation claims arising from retaliatory employer references. Courts have also allowed retaliation claims based on unwarranted criminal prosecutions, unjustified initiation of government investigations, refusing to allow a former employee into a store, and unsupportable counterclaims that are designed to discourage the employee from pursuing the legal claims.
DISCLAIMER: These answers do not constitute legal advice or guidance.
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