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Retaliation Claims: How to Protect Yourself When You Speak Up at Work

Employees are increasingly standing up against illegal retaliation at work.  Retaliation may happen, for example, when employees oppose discriminatory policies, whether in their own position or the situations of coworkers who they stand up for.  

Retaliation is generally defined to include adverse actions adopted or decided on by employers in response to an employee’s complaint of discrimination, participation in a discrimination investigation, or providing evidence or testimony in a discrimination hearing, arbitration, or trial.  If retaliation were allowed by law, the rights of all employees who fight for equality and justice in the workplace would be in danger.

Speaking Up Against Age Bias

Older workers can have the essential skills and years of training that help employers fill complex roles.  However, assumptions and stereotypes about “young” meaning “smart,” “up-to-date,” or “more energetic” can drive discriminatory policies against workers over the age of 39.  An employer, for example, might specify in a posting or interview that a worker should have grown up with the Internet, and be a “digital native,” as opposed to someone who learned digital skills later in life.  In a context of age discrimination, those who change careers or go back to school may be disadvantaged.

Opposing age discrimination is a right that workers have under some anti-discrimination laws.  These laws exist in New York, for example, at the local, statewide, and federal level.  The Age Discrimination in Employment Act, New York State Human Rights Law, and New York City Human Rights Law contain protections against retaliation in employment.  

Age discrimination can occur in posting jobs, during the hiring process, when deciding on promotions and transfers to better (or worse) positions and locations, and in selecting workers for layoff, furlough, or termination.  Sometimes, employers will argue that they had a neutral and job-related reason for treating a younger worker better.  One way that older workers can protect themselves is to consult an attorney or government official about whether this reason was an excuse or pretext, resulting in the same conduct or lack of qualifications not mattering for the younger worker, but impacting older ones harshly.

Speaking Up Against A Racially Charged Atmosphere

The U.S. Equal Employment Opportunity Commission administers some federal anti-discrimination laws relating to the workplace.  It lists harassing and discriminatory acts that may be illegal when race, color, or national origin of employees is a motivating factor, or part of the equation:

• Denying workers promotions or choice positions in ways that impact members of a race, etc.;

• Laying off workers of a certain race or other protected background more often;

• Punishing workers of one race with more frequent negative comments or demeaning actions;

• Including racial or ethnic preferences or specifications in job postings;

• Limiting an internship or an apprenticeship to a class of persons that tends to exclude members of a certain racial or ethnic/other group;

• Paying workers of a certain race or background less, failing to promote them to manager or assistant manager, or profiling them for certain roles for reasons not based on job-related education, training, or other qualifications; and

• Segregating workers or restricting their ability to transfer within the company or department in ways that singles out members of a race or other protected group, or that disproportionately affects them.

Adverse decisions taken against workers who stand up to discriminatory actions or policies – including terminations, transfers, and refusals to promote or give bonuses – can amount to illegal retaliation.

Speaking Up Against Sexual Harassment or Sex Bias

A working environment that is hostile to women, or members of distinct racial or national or ethnic groups, and so on, can be illegal under anti discrimination laws – federal, state, and local.  Resisting unwanted sexual advances, requests to link relationships or dating to decisions or opportunities at work, and offensive or inappropriate comments at work or after-work parties, get-togethers, and outings is therefore frequently protected by law.  Public policy supports employees who stand up to bias.   

Sexual discrimination may become clear after a difference in treatment, an unfair rejection of one’s qualifications for being hired or getting promoted, or excuses and wrongful policies that impact women more often than men.  Federal law and the New York Labor Law require equal pay for very similar work.  State or local law may be even more friendly to a female employee claiming a denial of equal pay rights, according to the Second Circuit court that judges appeals from federal courts in New York State and Connecticut.  The Labor Law and the New York City Code also restrict the use of salary history to set lower pay for new female hires.

Opposing sex discrimination and sex harassment is protected by federal law and some states’ laws.  

Speaking Up Against Illegal or Unethical Activities

New York law restricts the termination of employees who oppose illegal activities that may impact the public health or safety.  In the words of one court, this “‘whistleblower statute,’ provides, in relevant part, that ‘[a]n employer shall not take any retaliatory personnel action against an employee because such employee … discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation’ that either “creates and presents a substantial and specific danger to the public health or safety, or … constitutes health care fraud’,” and there is no “requirement that a plaintiff identify the specific ‘law, rule or regulation’ violated ….” Webb-Weber v. Community Inc., 23 N.Y.3d 448, 451-52 (N.Y. 2014) (quoting Labor Law § 740[2][a]). 

In addition, a federal law enacted in the wake of the financial crisis of 2007-2010 provides that public companies must not retaliate against employees who report potentially unlawful company practices.  Not only the government but the employees themselves may file claims for damages and other remedies against employers who punish protected actions like “blowing the whistle.”  Likewise, a federal law allows private citizens to sue on behalf of the United States government when their employer or someone else knowingly submits false invoices or other false claims for money or property to government agencies, for example federal health or welfare agencies. 

Employers may believe that intimidating workers, transferring an employee to a department or role where he or she “won’t do any more damage,” or firing him or her for speaking out is a right they have as property owners or because of the freedom of speech.  There is case law, however, that the employee’s right to be free from discrimination justifies the burden on employer’s property and speech rights, especially because the Fourteenth Amendment to the Constitution, guaranteeing the equal protection of persons, was ratified more than 100 years ago.

Next Steps

It is important to know your rights when it comes to retaliation for opposing harassment, discrimination, or other illegal or fraudulent activities.  A free consultation can help you understand your rights and take action to protect them, including by contacting human resources or the government.