Employees may claim that their employers took adverse action against them not because of poor job performance but because they took advantage of a statutory or regulatory right. Because the premise of a retaliation claim is that an employer, personified in the form of an offending supervisor, intentionally took adverse employment action against an employee for exercising statutory rights, these claims carry the potential for significant damage awards. This type of claim is the fastest growing category of employment law litigation. There are several reasons for this significant growth. First, numerous federal and state statutes provide employees with protection from retaliation. Most of these statutes do not strictly define the type of conduct that constitutes protected activity, giving rise to creative claims. Juries are more likely to give an employee a favorable verdict when a retaliation claim is asserted. Staggering compensatory and punitive damage awards are not uncommon. The complaining employee, who may continue to be employed, is in a position to argue that any further adverse employment action is merely a pretext for continuing retaliation. The retaliation claim may succeed even where the underlying claim of discrimination fails. Therefore, all employers must be sensitive to these risks and respond appropriately when an employee makes a complaint.
"Whistleblowing" is an employee reporting an employer's wrongdoing to a supervisor, a government agency or other third party such as the media or customers. Increasingly, employees who prior to their termination had raised concerns about their employer's conduct claim they were dismissed or discriminated against for whistleblowing. These claims can be filed alone or with other claims, such as discrimination and unlawful retaliatory termination.
Retaliation against employees because they have opposed unlawful employment discrimination is prohibited by Title VII of the Civil Rights Act of 1964,361 the Age Discrimination in Employment Act,362 and the Americans with Disabilities Act.363 The Fair Labor Standards Act prohibits retaliation against employees who file claims for unpaid wages.364 Retaliation is also prohibited by the Occupational Safety and Health Act,365 the Family and Medical Leave Act,366 the National Labor Relations Act,367 and the Sarbanes-Oxley Act.368
Although most of the provisions of the Sarbanes-Oxley Act do not apply to non-profit organizations,369 Section 1107 of the Sarbanes-Oxley Act imposes criminal sanctions against anyone, including an employee of a non-profit organization, who "knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense." Offenders are subject to a fine, up to 10 years of imprisonment, or both.370
The New York State,371 New York City,372 Westchester County and Connecticut Laws373 protecting human rights contain anti-retaliation provisions similar to Title VII of the Civil Rights Act of 1964. Other employment laws, such as Worker's Compensation, also contain prohibitions against retribution.
Both New York374 and Connecticut375 have whistleblowing statutes applicable to private employers. There may also be common law claims for violation of public policy.
The New York whistleblower statute prohibits a private employer from taking retaliatory action against an employee who discloses to his supervisor or to an appropriate authority that the employer is in violation of a "law or regulation" that presents a "substantial and specific danger" to the public health or safety. An employee may bring a direct action in court for violation of this statute and may be entitled to reinstatement, lost wages and benefits and attorneys' fees. However, an employee is not entitled to a jury trial and at least one court has held that punitive damages are not available.376 Moreover, under the statute, employees who are found to have brought meritless retaliation claims may be liable for the employer’s attorneys’ fees and costs. 376a
Claims made under the New York whistleblower statute must be based on actual employer violations of safety laws. An employee's good faith but mistaken belief that such a violation exists will not support a valid claim.376b Moreover, claims must be based on violations which impose an actual and substantial danger to the public health. For instance, one court found that an employer’s fraudulent billing practices were not the kind of violation contemplated by the statute because they did not create a specific danger to public health or safety.376c Another court upheld dismissal of an employee’s whistleblower claim finding that the alleged misconduct reported by the employee (a co-workers’ failure to perform medical test on a patient), was not sufficiently harmful to constitute the requisite “substantial and specific danger to the public health,” where the patient suffered no adverse consequences from the alleged lack of care.376d Likewise, alleged retaliation for asserting an employee’s right to engage in union activities has been held insufficient to state a “public health or safety” violation under the statute.376e
Under Connecticut law, an employer cannot discipline, discharge or otherwise penalize an employee because the employee, or someone acting on the employee's behalf, made a verbal or written report concerning a violation or suspected violation of any state or federal law, regulation or ordinance or concerning unethical practices, mismanagement or abuse of authority by the employer. This section does not apply when an employee knowingly makes a false report.377
Typically, under Title VII and similar federal and state laws, an individual must demonstrate that:
See the EEOC's Compliance Manual on investigating and analyzing retaliation claims.378
There are two types of retaliation claims, opposition and participation. Opposition claims are brought by individuals who claim they were retaliated against because they opposed a practice made unlawful by statute. Participation claims involve retaliation against an individual based upon filing a charge, testifying, assisting or participating in any manner in an investigation, proceeding or hearing under the applicable statute.
Generally, to state an opposition claims, a plaintiff is not required to show that he or she filed a formal complaint with a government agency; rather internal complaints to an employer will suffice.379 The courts have found the following to be protected activity:
The manner of opposition must be reasonable, and the opposition must be based on a reasonable and good faith belief that there has been discrimination prohibited by statute. The belief may be mistaken and the underlying discrimination claim need not be valid. The person claiming retaliation need not be the person who engaged in the opposition, but may need to be related or associated with that person. The issue is whether the claimant was adversely impacted so that opposition by the associated or related person was discouraged.
In participation claims, a formal complaint has been filed with a government agency but the individual claiming retaliation does not have to be the one who initiated the proceeding. "Any manner" of participation is protected, even where the claimant initiated a proceeding based on intentionally false and malicious allegations.380 Typically, the claimant has testified or assisted in an official investigation of the underlying claim.
There are many types of adverse actions that have been the basis of a successful retaliation claim. Examples include denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, transfer to a more difficult position, threats, reprimands, negative evaluations, and severe and pervasive harassment. Under EEOC Guidance, any "adverse treatment that is reasonably likely to deter protected activity" warrants protection by statute. Similarly, the United States Supreme Court recently held Title VII retaliation claims encompass employer actions which “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”381 Adverse actions may occur after the employment relationship has ended, such as adverse job references and informing prospective employers of the protected activity.
Proof that the adverse employment action was a result of engagement in protected activity can be direct or circumstantial. The circumstantial evidence demonstrating that the protected activity and the adverse action were linked frequently includes a showing that the adverse action occurred shortly after the protected activity, and the person who undertook the adverse action was aware of the claimant's protected activity. Often, the employer must establish that it would have taken the challenged action notwithstanding the protected activity.
In general, a whistleblower claimant under either statute or common law will be required to show:
The protected activity may be a report of wrongdoing to a supervisor, to a government agency, or to another third party, such as the media or customers.
There are four principal defenses available to employers involved in retaliation lawsuits:
The first step in a proactive approach to reduce the potential liability for retaliation and whistleblowing claims is a clear written policy prohibiting retaliation against anyone who has asserted a claim of workplace discrimination or unlawful conduct. See Appendix NN for an example of a Employee Protection (Whistleblower) Policy. Training of employees and managers that emphasize the employer's "zero tolerance" for retribution should be ongoing. An employee-friendly complaint process that results in prompt investigation and resolution of all claims is essential. Also needed is careful documentation of work-related job performance issues.
Employers should create a working environment where employees feel they can alert management to potential problems and participate in investigations without fear of retaliation. Ensuring consistent administration of policies and responding appropriately and promptly once a complaint is made are the best ways to prevent retaliation claims. Management should reassure the employee lodging the complaint or participating in the investigation that he or she will suffer no retaliation as a result.
Thus, to reduce the likelihood that an employee or former employee will have grounds to assert a retaliation claim for opposing an allegedly discriminatory practice or participating in an agency proceeding or court case, employers should be encouraged to:
To avoid the perception of retaliation, the employer must monitor all of its actions with respect to an individual who has initiated or participated in formal proceedings to ensure they are nondiscriminatory and consistent with past practices. This is particularly true when preparing to settle a lawsuit or resolve an agency charge, as the employer is in an especially vulnerable position with regard to even the most routine matters of personnel administration, such as distribution of assignments, staff scheduling, approval of requests for time off, and conducting performance and salary reviews.
Despite these and other precautions, the timing of a disciplinary action or an unsatisfactory performance review may appear to support a retaliation claim, especially if the underlying behavior has not been fully documented. In those instances, human resource professionals should confer with employment law counsel regarding the best way to proceed.
361 42 U.S.C. § 2000e-3(a). In addition to a claim for relief under Title VII of the Civil Rights Act, employees who claim retaliation based on race may also bring suit under 42 U.S.C. § 1981. CBOCS West, Inc., v. Humphries, 128 S. Ct. 1951 (2008). Section 1981 provides several advantages to a Title VII suit: suits under § 1981 may be brought directly in court without filing a charge with the EEOC; the statute applies to all employers regardless of size, whereas Title VII only applies to employers with 15 or more employees; there may be a longer statute of limitations; and there are none of the limitations on the amount of damages, including recovery for pain and suffering and punitive damages, as there are under Title VII.
363 42 U.S.C. § 12203(a) and (b).
369 The Sarbanes-Oxley Act also makes it a crime for anyone to knowingly alter, destroy, conceal, or falsify a document "with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States," or a bankruptcy proceeding. 18 U.S.C. § 1519.
370 For an excellent overview of the interplay between the Sarbanes-Oxley Act and non-profit organizations, see "The Sarbanes-Oxley Act and Implications for Nonprofit Organizations," ©2003 BoardSource and Independent Sector (revised January 2006), available at http://www.independentsector.org/PDFs/sarbanesoxley.pdf .
371 N.Y. Exec. Law § 296(1)(e).
372 N.Y.C. Admin. Code § 8-107(7).
373 Conn. Gen. Stat. §§ 31-51q.
375 Conn. Gen. Stat. §§ 31-51m(a) et seq.
376 Hoffman v. Altana, Inc., 198 A.D.2d 210, 603 N.Y.S.2d 499 (2d Dep't. 1993).
376a Gargone v. Capozzi, 238 A.D.2d 308, 656 N.Y.S.2d 49 (2nd Dep’t 1997).
376b Pail v. Precise Imports Corp., 256 A.D.2d 73, 681 N.Y.S.2d 498 (1st Dep't. 1998).
376c Remba v. Federation Employment & Guidance Service, 76 N.Y.2d 801 (1990).
376d Peace v. KRNH, Inc., 12 A.D.3d 914, 785 N.Y.S.2d 547 (3rd Dep’t. 2004).
376e Rohlehr v. Brookdale Univ. Hosp. & Med Ctr., 390 F. Supp. 2d 207 (E.D.N.Y. 2005).
377 Conn. Gen. Stat. §§ 31-51m(a) et seq.
378 http://www.eeoc.gov/policy/docs/retal.html
379 Under the Fair Labor Standards Act, the Second Circuit is in the minority in requiring a formal complaint to have been filed before an opposition retaliation claim is filed. See Lambert v. Genesee Hosp., 10 F.3d 46 (2nd Cir. 1993); Valerio v. Putnam Assoc., Inc., 173 F.3d 35, 41 (1st Cir. 1999).
380 Proulx v. Citibank, N.A., 659 F. Supp. 972 (S.D.N.Y. 1987).
381 Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006).