Refusing to engage in or directly calling out an employer on behavior that is discriminatory can be a risky move. A worker who does, likely expects to be retaliated against, with job reassignments, demotions, pay cuts, heightened supervision, an increase in write-ups, unjustified poor performance reviews or just general negativity from supervisors.
Because lawmakers recognized the risk assumed by those who oppose workplace discrimination, they took steps to protect them. In fact, the Americans with Disabilities Act extends specifically to these individuals, as does the New York State Human Rights Law. Also, Title VII of the Civil Rights Act contains an “opposition clause” that prohibits companies from lashing out against a worker who stands up against discrimination.
One recent example was seen in litigation filed by several food service workers at an upscale eatery in New York City, where several employees say they were subject to blatant harassment and discrimination on the basis of their disabilities and race. When one manager filed a formal complaint about the ill treatment of his co-workers, he was reportedly abruptly transferred to a different assignment on a less desirable shift. If the allegations proves true, it would be a classic example of retaliation for opposition to a discriminatory workplace.
The laws that bar this kind of action refer to the “protected activity” in which the target engages. With regard to “opposition,” this could mean filing a complaint or informing an employer of the belief he or she is engaged in unlawful discrimination. It might involve the worker simply expressing disapproval with the actions of a supervisor, or refusing to go along with discrimination. It could also mean initiating or cooperating with a formal investigation into discrimination at work. Witnesses who testify in formal investigations or litigation regarding workplace discrimination are also protected.
A 2009 decision by the U.S. Supreme Court in Crawford v. Metropolitan Government of Nashville et al. held the federal opposition clause was also applicable when employees participated in internal investigations of harassment and/or discrimination.
Discrimination can include sexual harassment, demeaning comments made to someone on the basis of race or national origin, refusal to make reasonable accommodations for someone with a disability or refusing to hire someone over 40 on the basis of age.
It’s worth noting that it doesn’t matter if an investigation later proves there was no actual discrimination, so long as the original opposition was grounded on a good-faith, reasonable belief of it.
The law also requires that in order for opposition to be protected, it has to be “reasonable.”
While the definition of “reasonable” is largely left to the discretion of the courts, some examples offered by the Equal Employment Opportunity Commission include:
- Filing a complaint regarding discrimination against oneself or others;
- Making a threat to file a discrimination charge;
- Publicly protesting or picketing acts of discrimination;
- Refusing to go along with an order one reasonably believes to be an act of discrimination.
Forms of opposition that would not be considered protected or “reasonable” would include anything unlawful, such as threats of violence, or actions that would significantly interfere with one’s job performance, essentially rendering the worker ineffective.
Generally speaking, retaliation is sometimes easier to prove than the underlying discrimination. While discrimination is not always overt or clear, adverse actions of retaliation tend to leave a solid paper trail that can be used later in court.
Examples of retaliation would include a demotion, termination, loss of benefits, promotion denials, and slashing one’s job title and/or responsibilities. The threshold of proof for discrimination tends to be lesser in retaliation cases than in cases that only allege discrimination, because one must only prove a “good-faith, reasonable belief” of discrimination that rendered their opposition lawful.
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.
Facts About Retaliation, U.S. Equal Employment Opportunity Commission
More Blog Entries:
New York City Employment Retaliation Claim Results in Costly Settlement, April 25, 2012, New York City Discrimination Retaliation Lawyer Blog