Employer retaliation sometimes occurs when employees report illegal, unsafe, or harassing conditions in the workplace. You have rights against such punishment.
What is Retaliation? Retaliation is any adverse employment action taken against an employee who has reported, opposed, or participated in an investigation for an unlawful employment practice. The U.S. Supreme Court has defined “adverse employment actions” as any action that would be enough to dissuade an employee from making a complaint of harassment or discrimination. In layman’s terms, any action taken to punish an employee for making a claim or opposing an employer’s unlawful activity is prohibited by law. Some examples of unlawful retaliatory action include: - Retaliatory termination (termination that is not a result of poor performance) - Transferring an employee to a different location or department - Reducing an employee’s salary - Denying a promotion or raise - Punishing an employee for taking leave under FMLA - Giving an employee less favorable assignments - Disparate treatment (treating the whistleblower differently than other employees) - Giving poor performance evaluations that don’t reflect the employee’s actual performance - Punishing an employee for filing a Worker’s Compensation claim Discrimination, Harassment and Retaliation are Unlawful Protection against retaliation is triggered after an employee makes a claim or participates in an investigation for harassment or discrimination in the workplace. Harassment and discrimination are prohibited by a number of federal laws. These laws likewise prohibit retaliation against employees who “blow the whistle” on employers who are violating the law. Some of the federal laws that include discrimination, harassment and retaliation provisions include: Title VII of the Civil Rights Act of 1964 prohibits workplace harassment and discrimination based on race, color, religion, sex, pregnancy, or national origin. Employees who report violations of Title VII are also protected against employer retaliation. The Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities. This act enables disabled individuals to make requests for reasonable accommodations so that they can perform the functions of their job. If an employer punishes an individual for making a request or complaint under the ADA, they may face repercussions for unlawful retaliation. The Age Discrimination in Employment Act of 1967 (ADEA) protects employees and job applicants who are 40 years old or older from discrimination because of their age. Like the other statutes that protect certain classes of workers, retaliation is prohibited against any employee or applicant who avails themselves of their rights under the ADEA. The Genetic Information Nondiscrimination Act (GINA) protects individuals against employment discrimination on the basis of genetic information, genetic tests, or family medical history. GINA also prohibits employers from requesting or requiring genetic information about applicants or employees, except in very limited circumstances. If an employee blows the whistle or opposes an employer’s practices that discriminate based on genetic information, they are also protected against retaliation. Anti-Retaliation Laws Were Made to Protect Whistleblowers Lawmakers recognized that reporting unlawful activity in the workplace carries certain risks. If employees could be punished or terminated for reporting discriminatory practices, few reports would occur, and anti-discrimination laws would have virtually no impact in the workplace. That’s why lawmakers included anti-retaliation provisions: to protect employees who help uphold and enforce the law. As an employee, you have the right to work in an environment that is free of harassment and discrimination. Even when upper management is the source of the illicit behavior, you have the right to voice your concerns without negative employment repercussions. If you feel you are being punished for speaking up about unlawful activity in the workplace, you have rights.
Ross v. County of Riverside In a recent California case, Ross v. County of Riverside, plaintiff, a former deputy district attorney, sued his former County employer for violations of Labor Code section 1102.5 and the Fair Employment and Housing Act (“FEHA”), claiming whistleblower retaliation and disability discrimination. The trial court granted summary judgment in favor of the County, finding that plaintiff could not establish that he engaged in protected activity or that he had a disability recognized under FEHA. The Court of Appeal reversed and remanded. Reversal and Remand Plaintiff disclosed exculpatory evidence to his supervisors at the District Attorney’s Office. In spite of the evidence, the District Attorney’s Office pursued malicious prosecution, and retaliated against plaintiff for reporting the supervisors actions. The Court of Appeal for the Fourth District found that the disclosure of information by plaintiff to his supervisors was a protected activity. In addition, around the same time as the above mentioned incident, Plaintiff began exhibiting neurological symptoms due to a concussion syndrome that required him to undergo treatment and testing. After asking for a lighter caseload with “no stress or deadlines” as an accommodation, plaintiff’s supervisor declined his request. The County requested medical documentation that Plaintiff could not provide. The Court of Appeal held there were triable issues of material fact as to both Plaintiff’s claim that his disclosure was a protected activity under Labor Section 1102.5 and whether he had a disability under FEHA. The court thereby reversed the judgment, remanding the case for further proceedings.
Filing Discrimination Complaints with the D.C. Office of Human Rights An employee that works within the District of Columbia may file an employment discrimination complaint through the D.C. Office of Human Rights. The D.C. Human Rights Law prohibits discrimination on the basis of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, or political affiliation. The first step in filing an employment discrimination complaint with the D.C. Office of Human Rights is filing what is referred to as an "Employment Intake Questionnaire Form." This may be done online through the D.C. Office of Human Rights. To meet the criteria, the last act of discrimination or retaliation must have occurred within one year of the filing of the Intake Questionnaire. Once the Intake Questionnaire has been filed, the D.C. Office of Human Rights will review the Intake form to ensure that the Office has jurisdiction over the matter. The D.C. Office of Human Rights has jurisdiction over all employers conducting business in the District of Columbia. Note this jurisdiction does not apply to Federal Government agencies. That would be covered under Federal Sector Discrimination (see my guide on Federal Sector Discrimination). If you are an employee of the D.C. Government and you experience discrimination in the work place, you must file an Internal Discrimination Complaint with the particular agency that you work for within D.C. Government before you can file a Complaint of discrimination with the D.C. Office of Human Rights. An exit interview letter must be provided to the D.C. Government employee, stating that he or she has been given an exit interview by the local EEOC Agency Office within the D.C. Government. D.C. Office of Human Rights Process Once the D.C. Office of Human Rights has ensured that it has jurisdiction over an employment discrimination matter, an Intake person from the Office will contact the Complainant and their representative if they have one, to come into the D.C. Office of Human Rights and to actually draw up a charge of discrimination. Once that charge has been drawn up, it will be sent to the respondent employer. The employer charged with discrimination will have the opportunity to respond to the allegations and to rebut any of those allegations of discrimination. The employer, through their attorney, may at that time offer a motion to dismiss probably on the grounds of lack of jurisdiction. These motions are usually defeated because the D.C. Office of Human Rights has jurisdiction over the great majority of cases that are filed in their office. Once the charge has been drawn up and provided to the respondent employer, a mandatory mediation session is arranged. One of the great benefits of going through the D.C. Office of Human Rights is, unlike a complaint of discrimination filed with the EEOC or through the Federal Sector, that the mediation is mandatory and requires both sides to show up for the mandatory mediation session. If mediation fails, then the D.C. Office of Human Rights will conduct a full-blown investigation which can take up to a year or more. Once the investigation is completed, the D.C. Office of Human Rights will issue a finding of no discrimination or a finding of discrimination. If either party disagrees with the determination, they can ask for reconsideration of the matter, although realistically the majority of requests for reconsideration are denied. You may also submit new additional legal arguments and facts with your reconsideration request. If the D.C. Office of Human Rights finds there is discrimination, it will mandate a conciliatory meeting to try to settle the matter once again.
Don’t disparage your company online. For many of us, social media is one of the first things we turn to after a hard day, and it might even be a place you’re used to complaining about your job regularly. If you think you’re getting fired, it is essential to resist the temptation to bash the company online. Don’t just stay away from Facebook, Twitter, and Instagram; steer clear of venting your frustration on Yelp, LinkedIn, and job review sites, too. While it may feel good to bash your boss on the Internet, your short-term frustration may turn around to bite you and make it harder to get a severance agreement. You’re not going to solve any problems or prevent your imminent firing, and on the off-chance that you’re not actually being let go, you’re giving the company a great reason to reconsider. Find a family member or trusted friend and vent to them instead. Don’t email yourself sensitive information. It can be tempting to email yourself proof that you’ve been doing your job well, or proof that you’ve been discriminated against, but be careful to stay within the guidelines of your company’s policy about confidential and sensitive information. Printing out information and saving it, uploading files to a flash drive or forwarding emails to an account outside of your company’s system could be grounds for dismissal by itself. If you feel you have been discriminated against, your company may be required to provide information such as email correspondence and job reviews anyway (California law requires that employers provide their employees’ personnel files upon termination. Texas law does not but in a lawsuit, you will ultimately get your personnel file). Forwarding emails to yourself may seem like a good idea, but it’s important to not give the company any more reasons to let you go. Do continue to do your job to the best of your ability. It can be hard to soldier on when you feel you’re facing termination, but if you suddenly stop doing your job, or you encourage others to stop doing their jobs, you are giving your employer more reasons to let you go. Don’t get into an argument with your boss. It is very important to not vent your frustration or anger to anyone senior to you, including most importantly your boss. Good claims for wrongful termination can go sideways in a minute if you boil over and say anything inappropriate to your boss or another member of management, including the HR employees. If you are fired, resist the temptation to tell the people who terminated you what you think of them or to be insubordinate in any way. If you do have a good claim for wrongful termination, don’t waste it by giving the company a valid reason to have fired you. Do make a list of relevant incidents in your job history -- and keep it at home. If you suspect that discrimination or retaliation may be to blame for your termination, make a list of relevant incidents. Was there a change in your manager’s behavior after you reported sexual harassment? Did your employer withhold your yearly bonus after you reported the company’s illegal conduct? Did your hours change after you took medical leave or requested disability accommodations? Does your supervisor have a habit of telling inappropriate jokes? Have you been passed over for promotions that have been given to younger employees with less experience or only to men or only to employees of a different race? There are lots of different ways discrimination and retaliation can happen, and it’s important to sit down and write out any incidents you feel may be relevant to your claim. Also include times you were praised for your work, or got an award, promotion, raise, or performance bonus. If you get fired for alleged performance issues, this will help to refute that. Try to remember specific names, dates, and times if possible, including the names of any witnesses to the incidents. Putting the list in chronological order is usually the best way to keep it organized. Finally, remember to keep the list at home; don’t share it with any coworkers or put it online. These incidents may point to discrimination or retaliation, and they may not. Read more here about discrimination and protected classes, retaliation, and whistleblowing. Do make a claim for discrimination or other wrongful treatment with HR If you have not already done so, inform your HR department or other appropriate person of your claims that you have been treated wrongfully. It may be best to consult with an attorney regarding what to say and how to say it, but it is important that you have made a record of your allegations. Do so professionally and appropriately. Put your claims and their factual background in writing if possible.
As first-line defense against workplace disruption and legal claims, there is no substitute for well-written, up-to-date policies and procedures. A current, thorough employee policy manual (handbook) and complementary written internal guidelines covering all major aspects of personnel relations permit managers and rank-and-file workers alike to know where they stand. The courts are full of many employment-related lawsuits that likely could have been prevented with clearly written and uniformly applied policy in compliance with current law. An outdated handbook can cause its own set of problems. Over the past two decades, we have developed and refined a “soup-to-nuts” employee handbook and package of basic hire-to-fire forms and policies. Implementation of these forms and policies will greatly improve a company’s legal protection in employment screening, hiring, training, terminations, and other related issues. Our 2019 model employment handbook and forms contain significant revisions to keep pace with new laws and recent case decisions, not the least of which is the #metoo movement. Our model forms and policies include: a) Employment applications (including releases that acknowledge an employer’s use of pre-employment tests, notwithstanding the Americans with Disabilities Act and California’s constitutional privacy protection); b) Form job description (again, setting the foundation for use of tests at the pre-employment stage); c) Pre-employment procedures policy (properly positioning the above tests as aimed at job-related qualities rather than physical or mental disabilities); d) Employment agreement (including confidentiality/non-disclosure of company trade secrets and mandatory mediation and/or arbitration in the event of a dispute); and e) Termination policy, checklist and standard release (to be applied with troublesome employees for greater protection against later, frivolous suites). Our comprehensive model employee handbook includes: a) Conditions of company employment b) Discrimination and harassment, prevention and handling c) Employee compensation d) Employee benefits e) Employee job performance; mutual termination rights f) Employee privacy expectations, employer access to employee-maintained databases and social media guidelines g) Unpaid time off h) Job-related injury or illness i) Workplace health and safety j) Drug and alcohol policy; drug testing CONTACT US TO ORDER NOW “The employee manual creates very clear-cut policy and stable data for staff. They know the rules of the game because they are written. It makes it easier to correct staff. They have a policy that they can be referred back to and, if uniformly applied, they can’t hit you with ‘you’re picking on me, aka, you are discriminating against me’.” –JG To order or for more information, contact client services director Loretta Gardea at 626.583.6600 or email her at [email protected]
What is the California Department of Fair Employment and Housing (DFEH)? The DFEH is *the state agency charged with enforcing California*s civil rights laws.* Its specific mission is *to protect the people of California from unlawful discrimination in employment, housing, and publication accommodations, and from hate violence and human trafficking.* What Protections in the Workplace Does DFEH Enforce? The DFEH is responsible for enforcing California state laws, like the Fair Employment and Housing (FEHA). Under FEHA, it is illegal for employers of five or more employees to discriminate against job applicants and employees because of a protected category, or retaliate against them because they have asserted their rights under the law. Even with workplaces with fewer than 5 employees, FEHA prohibits harassment against an employee because of a protected category, as well as harassment due to a protected category for job applicant, unpaid interns or volunteers, or contractors. These laws apply even before an employee gets a job. The DFEH prohibits discriminatory job ads, job interviews, and screening processes - such as job ad that discriminate on a person's age (for example: "seeking youthful applicants" or applicants of a certain age) and interviews (like declining to hire an employee because they are pregnant). Under California law, employees are protected from discrimination, harassment, and retaliation based on the following traits: -Race, color -Ancestry, national origin -Religion, creed -Age (over 40) -Disability, mental and physical -Sex, gender (including pregnancy, childbirth, breastfeeding or related medical conditions) -Sexual orientation -Gender identity, gender expression -Medical condition -Genetic information -Marital status -Military and veteran status The DFEH also enforces employees' rights under the California Family Rights Act (CFRA), which provides job protections for employees who need time off from work due to birth of a child, for placement of a child in the employee*s family for adoption or foster care, for the serious health condition of the employee*s child, parent, or spouse, and for the employee*s own serious health condition. Finally, the DFEH enforces employees' rights under the New Parent Leave Act (NPLA), which requires employers of 20 or more employees to provide eligible employees job-protected leave for the birth of a child or the placement of a child for adoption or foster care. In addition, the DFEH enforces other California laws, such as those requiring that employers of five or more employees provide up to four months disability leave for an employee who is disabled due to pregnancy, childbirth, or a related medical condition and that employers of 50 or more employees are required to provide sexual harassment training to supervisory employees. The DFEH will accept employees' complaints about employers not complying with these requirements. What To Do If You've Experienced Discrimination, Harassment, or Retaliation If you are an individual who believes you have experienced illegal discrimination, harassment, or retaliation in the workplace, it is important you speak with a California licensed employment lawyer right away. Additionally, you may seek assistance from the DFEH or the Equal Employment Opportunities Commission (EEOC) to file a complaint. Keep in mind that many claims are subject to a strict statute of limitations (aka there is a deadline to file your claim), so if you believe you have been subject to illegal activities, it is important you take action right away.