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Employment Retaliation: Know When – and How – to Fight Back

It can be difficult for a worker to stand up against discrimination by an employer, especially when there is a strong likelihood the company will respond with retaliation.

When an employer engages discrimination, retaliation is often used to damage an accuser’s credibility, as well as serve as a warning to anyone else who might come forward.

The Equal Employment Opportunity Commission defines retaliation as occurring when an employer or labor organization takes some kind of adverse action against a covered individual because he or she engaged in protected activity. Proving a claim of employment retaliation in New York City means all three of these elements must be present.

Adverse actions could come in many forms, and can include things like: A switch to a less desirable job assignment, denial of promotions, lay-offs, cuts in pay, loss of fringe benefits, harassment, negative evaluations that are unjustified and even wrongful termination. The law is clear to differentiate between an “adverse actions” and petty annoyances, slights, stray negative comments by colleagues or poor performance reviews based on poor work history.

Meanwhile, covered individuals are those who have engaged in protected activity, which is that they in some way opposed discrimination related to race, disability, color, religion, gender, age or national origin, or participated in or requested help with a discrimination claim. Title VII of the Civil Rights Act of 1964 gives workers the right to be free of discrimination or harassment on these grounds.

Both state and federal lawmakers have long recognized that employers, being in a position of power, can retaliate against workers who complain about unfair conditions. Still, it would seem that by now, most employers would be aware of the potential consequences of such action. And yet, it happens all the time.

A recent local example was seen in the case of Richardson v. New York State Office of Mental Health. Here, a federal judge for the Northern District refused to dismiss a job discrimination claim brought by a worker in a psychiatric center. The worker, now retired, claims he was denied a promotion and later demoted because of his race, and the fact that his white girlfriend won a lawsuit against the same employer for unfair firing based on her association with him as a black man.

The defendant employer moved for a summary judgment on the grounds any adverse actions taken against the worker were justified. However, the judge ruled the plaintiff raised enough questions of triable fact for the case to proceed.

The worker had been employed at the facility since 1983, where he worked in security. He alleged he was demoted from his supervisory position around the same time his girlfriend secured a $580,000 judgments against the facility for wrongful termination. Following his demotion, the plaintiff alleged white candidates with similar and even lesser qualifications were promoted, suggesting his bosses were looking for reasons to deny his advancement, despite his long history of positive job evaluations.

In addition to federal laws that prohibit such actions, New York City has strict anti-retaliation laws. Specifically, New York City’s Human Rights Law offers enhanced protections to workers by recognizing that not all retaliation may be overt. The language of this statute bars any manner of retaliation. That means it may not be necessary to prove a change in employment terms or conditions in order to prove retaliation. The intention is to expand on the existing protections laid forth under the Civil Rights Act.

It’s worth noting that many states and municipalities are expanding the definition of what constitutes discrimination, which therefore expands the circumstances under which a worker can bring a claim for retaliation. For example, New York law now prohibits public employers from discriminating against workers on the basis of gender identity, and bans all employers from discriminating on the basis of sexual orientation. President Obama recently signed an executive order barring discrimination against gay Americans by federal contractors.

In addition to these, the EEOC recently released new guidelines – for the first time since 1983 – that more clearly define discrimination on the basis of pregnancy, which is barred under the Pregnancy Discrimination Act of 1978.

The bottom line is there are many well-known bases for employment retaliation lawsuits. However, careful analysis will be required in order to determine the strongest claims to make, whether to bring them forth in federal or state court and whether to cite federal, state and/or municipal laws in the claim.

The Law Offices of Ira S. Newman provides employment litigation representation in New York City, Long Island, Great Neck and throughout the area. Call 516-487-7375 or send us an e-mail.

Additional Resources:
How to File a Discrimination Claim, New York Department of Labor
More Blog Entries:
New York Labor Law Violations: Don’t Risk Your Business, Aug. 8, 2014, New York City Employment Discrimination Lawyer Blog