An employer recently learned the hard way that a proper response to an employee’s complaint of harassment involves more than simply investigating it. I’ll explain. Last night, I read a recent decision from a Pennsylvania federal judge. The plaintiff, an Asian American, testified at his deposition that his supervisor often…
Articles Posted in Retaliation
Some complaints of sexual harassment aren’t protected at all
Suppose an employee gets fired after complaining about sexual harassment at work. If that person later claims retaliation, they will have to establish a nexus between the two events, and the complaint also arises to the level of what we call a “protected activity.” For an internal sexual harassment complaint…
Is complaining about a hostile work environment enough to support a retaliation claim? Maybe. Maybe not.
(At least I didn’t say, “It depends.”) Title VII of the Civil Rights Act of 1964 prohibits employers from retaliating against employees who oppose a practice that Title VII forbids, such as discrimination or fostering a hostile work environment based on race, color, national origin, sex, or religion. An internal…
When an employee sues, what law applies when they’ve worked in two states?
Famartin, CC BY-SA 4.0, via Wikimedia Commons I read a recent NJ federal court decision where a plaintiff began working for the defendant in New Jersey but later requested and received a transfer to Pennsylvania. And that’s when things went awry. The plaintiff alleged that, at an operation leadership meeting,…
Not all retaliation laws are alike. There’s one that doesn’t even require any intent to retaliate.
There are all sorts of anti-retaliation laws that protect employees. Many require that employees who invoke them prove that the employer acted with retaliatory intent. But not all of them. Last week, the Supreme Court agreed unanimously in Murray v. UBS Securities that the one that protects whistleblowers who speak…
It may be okay to terminate someone after they complain about discrimination if…
A university professor did not have her employment contract renewed after two years on the job. Why not? She claimed it was in retaliation for previous internal complaints of discrimination. According to the school, there were several decision-makers, and most didn’t know she had complained. (So, how could they have…
A bipartisan group in Congress wants to make it easier for employees to prove age discrimination
On Monday, three House Republicans and three House Democrats reintroduced the Protecting Older Workers Against Discrimination Act (POWADA), billed as a bipartisan proposal to strengthen anti-discrimination protections for older workers. How does POWADA accomplish this? The Age Discrimination In Employment Act makes it unlawful for an employer “to fail or refuse to hire…
A woman was reprimanded after complaining about sexual harassment. That’s usually not retaliation. Here’s why.
I’ve defended way more retaliation lawsuits than I can recall. The facts and circumstances may vary, but the law doesn’t. A plaintiff claiming retaliation generally must: (1) engage in protected activity (e.g., an internal complaint of discrimination or participate in an EEOC proceeding); (2) suffer a materially adverse employment action;…
What are there legal risks of making a worker participate in an Employee Assistance Program?
Suppose that several employees complain that a coworker is creating a “hostile work environment” because they were afraid that she (the coworker) was going to report them (the employees) for engaging in unspecified misconduct in the workplace. Can the employer respond by mandating an Employee Assistance Program (EAP) referral as…
Complaints of discrimination can come in all shapes and sizes
A tenured professor in a university’s history department learns of “discrimination” and “marginalization” of Hispanic employees within the department. The university appoints him to an “Equity Committee” to address the problem. As part of his remediation efforts, the professor creates a “salary report” confirming instances of pay disparity among minority…