Workplace Issues: ?Retaliation? Claims Tied to Narrow Rules

Retaliation Claims are Independent Violations

by Harvey P. Sanders, Esq. and Jeri N. Hagen, Esq.*

We often hear about claims under state and federal laws which make it illegal to discriminate against employees based on their age, color, disability, marital status, national origin, sex, race, or religion.  People may also be aware that it is illegal for an employer to retaliate against an employee who engages in activity protected under the employment discrimination laws, such as opposing discrimination or participating in an employment discrimination proceeding.  What may be surprising is that whether an employee will win a retaliation lawsuit does not depend on whether any discrimination actually took place.  This is particularly important as the Supreme Court narrows the scope of coverage of certain discrimination laws, particularly the Americans with Disabilities Act (“ADA”).
The Law
To win a retaliation claim, the employee must prove that: 1) s/he engaged in protected activity (opposed discrimination or participated in the statutory complaint/investigation  process), 2) the employer knew of the activity, 3) some adverse employment action happened (such as termination or demotion), and 4) that there was some causal connection between the protected activity and the adverse action.  The closeness of time between the protected activity and the adverse action is an important factor to consider with respect to any causal connection.
 
There is no requirement that the person asserting the retaliation claim prove that they are a member of a protected class (race, religion, sex, national origin, age, or disability).  (Of course, a retaliation claim must involve an underlying claim of discrimination by that individual or another, in violation of one of the federal or state laws: Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (“ADEA”), the ADA, the Equal Pay Act and/or the New York State Human Rights Law).  For example, an individual who alleges retaliation in violation of the ADA does not have to be an individual with a disability.  Indeed, the individual claiming retaliation may be a different person than the person who was discriminated against.  But there has to be some underlying claim that an applicable federal or state law was somehow violated.
Types of Claims
Retaliation laws protect two types of activities.  The first involves an employee opposing his/her employer’s illegal employment discrimination practices, whether targeted at themselves or another employee, and then suffering an adverse employment action because s/he made such a complaint.  Retaliation may also happen when an employer retaliates  against an employee closely associated or related to another employee who is complaining of discrimination in an effort to deter the employee from complaining.  Surprisingly enough though, even if the underlying discrimination claim is invalid, the retaliation claim may still be successfully litigated as a separate and independent claim.  The only requirement is that the employee who opposed the employment practices, reasonably or in good faith believed the employment practices to be discriminatory.
 
The second type of activity that is protected against retaliation involves individuals who participate in an investigation, proceeding, or hearing under an applicable statute.  For example, a new employer may retaliate against an employee due to his/her claim of discrimination made against a previous employer; or an employer may retaliate against an employee for testifying against the employer in an employment discrimination proceeding brought by another individual.  Thus, even where an underlying claim of discrimination may not exist for that individual, a retaliation claim may still be litigated.  In this type of situation where an individual is retaliated against because of their participation, the reasonableness of the underlying charge is irrelevant.
As noted above, in both categories of retaliation, even if the underlying discrimination claim is invalid, a retaliation claim may still succeed.
An Example
In a recent case in New York, an employee had a sensitivity to the heat and sun and his employer provided access to shelter.  After the employee was transferred to a new job site, which did not have access to shelter, the employee’s medical condition caused him to become “violently ill, dizzy, nauseous and disoriented,” to a point where he almost fainted and was almost hit by a car.  The employee requested a reasonable accommodation of asking to be transferred to a vacant position in which shelter was available.  The employer refused and required him to continue working without access to shelter.  The employee felt forced to resign and sued, claiming the refusal to accommodate his disability and his forced resignation were discrimination and retaliation for his having complained about disability discrimination.  The employer asked the Court to rule in its favor before the case went to trial.  The Court agreed the employee was not disabled within the meaning of the ADA, because his condition did not prevent him from working in a broad range of other jobs for which he was qualified.  However, the Court permitted the retaliation claim to go to trial.  The Court explained that a request for a reasonable accommodation is a form of opposition to discrimination and is therefore a protected activity.  Moreover, the Court agreed that the employee’s “request was based on the good faith belief that he was entitled to a reasonable accommodation under the ADA.”  Because the resignation followed close in time to the requests for an accommodation, the Court found a causal connection between the protected activity and the adverse employment action.
 
Conclusion
The purpose of retaliation laws is to encourage participation in the state or federal employment discrimination proceedings and to promote the willingness of individuals to speak out against employment discrimination.  Keeping the retaliation claims independent of the underlying discrimination claims advances these objectives because it expands the scope of individuals protected from retaliation.
Foremployees who believe themselves to be a victim of discrimination, the retaliation laws allow them to raise concerns knowing they should not be adversely treated for doing so.  For employers, these laws are a reminder that they should not take actions because an employee makes a discrimination complaint.  Although an employee who makes a complaint is not immune from discipline, employers should carefully document the reasons for such discipline and make sure enough time has passed to reduce the likelihood it will seem retaliatory.
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Harvey P. Sanders is a Partner in the law firm of Sanders & Sanders, which represents employees and employers in labor and employment matters. Jeri N. Hagen is an Associate with the firm.