Retaliation

Both Federal Law and California Law afford protection against discrimination and harassment in the workplace. It is important to note that these laws go further to protect employees from retaliation by their employer for exercising or attempting to exercise those rights. In fact, the law states the following:

“An employer may not take any adverse employment action against an employee who has (i) opposed any practice made unlawful under Title VII; or (ii) mad a charge, testified, assisted, or participated in any manner in any investigation, proceeding or hearing under Title VII“.

Likewise, California Law makes is unlawful, “For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” California Government Code 12940(h)

It is important to understand that this is a separate claim from the underlying wrongful conduct. In fact, underlying claims for discrimination or harassment can even be dismissed but, the retaliation claim may stand.

Retaliation claims should be analyzed by an attorney but, in general they can be proven through direct or circumstantial evidence including the following:

Employer Knowledge: The employer knowing that the employee engaged in a protected activity is crucial to proving a retaliation claim. In my experience, employers will claim, quite often, that they didn’t know that an employee had requested medical leave, made a complaint about discrimination or unsafe working conditions, etc. and, therefore, how could they have possibly retaliated against the employee for doing so? For this reason, it is crucial to DOCUMENT any time you “engage in a protected activity”. What does this mean? For example, if you are diagnosed with cancer and need to take time off, it is important to have your doctor provide a note to the employer specifically stating the nature of your illness, how much time you need, and when they can expect you back to work. This type of documentation should be sent by some means that proves that it was received such as certified mail (with a return receipt requested), fax (with a confirmation of receipt), or email with a confirmation that it was read. Likewise, complaints to Human Resources or management for the employer about discrimination in the workplace, unsafe working conditions, unpaid wages, or any other number of “protected activities” should be made by the employee, in writing, and sent in a manner where receipt can be confirmed.

Proximity in Time Between Protected Activity and Retaliation: Here, there is no “hard and fast rule” but, in general the closer in time between when the employee engaged in a “protected activity” (such as requesting medical leave, requesting maternity leave, advising the employer of a medical condition or disability and asking for accommodation, etc.) and the retaliation (eg. termination of employment, demotion, reduction in pay or position), the more likely that the employee can show a “causal connection” between the two.

Pattern of Conduct: Showing that other employees in your same or similar situation were also demoted or fired for engaging in a protected activity can also go to prove the employer’s intent to retaliate against you. For example, if numerous other employees asked for time off to deal with medical issues and were terminated with in a relatively short time thereafter, this might show a patter of misconduct on the part of the employer.

In almost every case, the employer will claim to have a legitimate reason for firing the employee that has “nothing to do” with the employee engaging in a protected activity. As an employment attorney in California, I hear the same arguments over and over: “We were already going to eliminate his/her position before we knew she made a complaint or asked for accommodation”; “The employee was doing a terrible job so, that’s why were fired them”, etc. The employee then must show that the alleged “legitimate” reason for termination was mere “pretext” What does this mean? It means that the employee has the burden to show that the proffered reason was not the real reason or the only reason why they got fired, demoted, etc.

Common Examples:

• Medical Leave/Disability Issues: An employee has been working at a company for 8 years. The employee’s job performance evaluations are not perfect but, overall, the rating was positive especially in the last few years. The last really negative review was two years ago. The employee gets diagnosed with cancer and makes a written request, through a doctor’s note, to take some time off and return after chemotherapy. The employer, in a fairly short period of time, after they are informed of the cancer diagnosis and need for time off, says they “can’t afford” to keep the employee because it will leave them short-staffed and fire the employee. As it turns out, there were other employees before this one that were terminated after advising they had cancer and needed time off for treatment. The employee makes a claim that the employer clearly knew (because they were informed in writing) that they needed accommodation for a serious medical condition. The employee also argues that the short period of time from when the employer was informed and the termination shows clear intent to retaliate. The employer argues that the termination was merely a “business decision” and shows documentation stating that the position needed to be filled so that normal business operations could continue. The employee then finds evidence that a temporary worker was immediately placed in the sick employee’s position and was doing the job fine while the employee was out sick, therefore, showing that the claimed “urgent business need” was not the real reason for the termination, the firing was motivated by an intent to retaliate against the employee for requesting medical leave.
• Fired for Filing a Workers Compensation Claim: Employees who are injured on the job are entitled by law, to receive medical treatment and, sometimes, disability payments to help replace lost income. Far too often, in California, employers are retaliating against employees for “running up their rates” by filing a work comp case. This is one example where there are specific statutes in place that forbid this type of retaliation. Labor Code 132(a) provides for penalties with the Workers Compensation Appeals Board and this may also give rise to a civil lawsuit outside of the workers compensation system.
• Termination for Participation in Valid Civil Actions: Employees may have participated in a class action lawsuit for unpaid overtime wages. The lawsuit settles. Shortly after that, the employer starts “writing up”, demoting or firing employees who took part in the wage claim.
• Being Fired After Making a Complaint of Sexual Harassment in the Workplace: A female employee is constantly being subjected to sexual comments and unwanted physical contact from her boss. She makes a written complaint the Human Resources and they say they will “do an investigation”. The “investigation” takes all of a couple of days and they tell the employee that they can’t “substantiate her allegations”. The boss (who was interviewed as part of the “investigation and, therefore, clearly knows about the complaint) then starts writing the female employee up for alleged performance issues (despite never having taken issue with those in the past). The employee is subjected to months of these types of write ups and criticism and then fired.
• Retaliation for Complaints About Workplace Safety: California Labor Code 6310(b) provides protection to employees in California that make bona fide complaints concerning unsafe working conditions. For example, if a warehouse worker sees that he is being asked to operate a forklift without the proper brakes or other functions and gets fired a short time thereafter, he may well have a claim for wrongful discharge due to retaliation.

Need to Consult An Employment Attorney Familiar with Retaliation Claims

As discussed above, the employer will always have some “legitimate” stated reason for firing an employee. If the employee can prove that this was not the real reason they were fired, but, rather it was in retaliation for asserting the legal rights, they may have a right to file a lawsuit in court and demand compensation. The difficulty is that the employee has the burden to prove retaliation. Proving this most often requires making formal requests for personnel records and other documents, obtaining information from prior employees or other witnesses or taking the deposition of current employees or management. This is never an easy process but, a top-notch employment lawyer can help obtain the evidence, prove the case and get the employee just compensation. If you were terminated and believe that it was in retaliation for making requests for medical leave, making complaints about discrimination or harassment in the workplace, making complaints about unsafe working conditions, being injured on the job and filing a workers compensation claims or participating in any type of legitimate legal action against the employer, call Steven M. Sweat, APC for a free initial evaluation of potential claims you may have: 866-966-0524