Retaliation Against Employees Participating in Discrimination / Harassment Investigations is Illegal

workplace harassment investigationsOne of the more important cases discussing retaliation protection for employees and specfically what it means to engage in a “protected activity” is the US Supreme Court’s decision in Crawford v. Metropolitan Gov’t of Nashville (2009). In that case, a 30-year employee was interviewed as part of the investigation into sexual harassment allegations against one of the directors. She shared with the investigator that the same director also sexually harassed her. The employer took no action against the director-harasser. However, the employer soon fired Crawford for allegedly engaging in embezzlement.

One of the key disputes issues in the case was whether Crawford’s participating in the investigation constituted a “protected activity” within the meaning of anti-retaliation law. The employer argued that “opposing” within the meaning of the law means actively complaining about harassment, rather than answering questions when being approached and interviewed.

The US Supreme Court rejected the employer’s argument, concluding that a person can “oppose” by responding to someone else’s questions just as surely as by provoking that discussion. The Court noted that nothing in the anti-retaliation statute requires a rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination or harassment in the same words when asked a question.

Holding otherwise, the Court mentioned, would have a chilling effect on discrimination/harassment investigations and would discourage employees from answering the same questions truthfully. After all, if answering questions about harassment and discrimination allegations would not be a protected activity, this would give a good reason to employees to keep quiet in order to avoid the risk of being retaliated by their employer.

“Protected Activity” Within The Meaning of California Anti-Retaliation Laws

retaliation protected activityTo prove a retaliation claim in an employment / wrongful termination claim, a claimant must show that he/she engaged in a “protected activity” under the law – i.e. that the employee reported or opposed an unlawful employment practice or participated in a hearing or a proceeding. Like in many other areas of (employment) law, this definition leaves lots and lots of space for interpretation and determine that a certain activity would be considered “protected” under the law is not always easy. This is because on the one hand, the California Supreme Court held that “standing alone, an employee’s unarticulated belief that an employee is engaging in discrimination will not suffice to establish the retaliation claim. Yanowitz v L’Oreal USA, Inc. The Court further noted that an employee’s complaints about personal grievances or vague, conclusory remarks about being treated poorly or unfairly at work that fail to put the employer on notice of unlawful conduct do not establish a protected activity.

On the other hand, if an employee’s comments and actions, in their totality, oppose discrimination, then no particular buzzwords are required, nor should employees be forced to complain about the discriminatory conduct directly to their immediate supervisors. The Yanowitz decision further held that the proper inquiry is whether an employee’s communications or conduct sufficiently conveyed a reasonable believe that unlawful conduct had occurred.

In Yanowitz, the Supreme Court made another important observation, favorable to employees. The Court noted that an employee may engage in “opposition” within the meaning of anti-retaliation laws not only by raising a complaint, but also by refusing to follow a supervisor’s order to fire an employee for discriminatory reasons.

An employee who considers making a complaint about a violation at workplace, which might be considered a protected activity, such as complaining about discrimination, harassment, safety violations, patient abuse, etc., should consult an experience employment attorney in order to make sure that the complaint is properly drafted, and that it doesn’t hurt the complaining about more than helps.

Bringing 132(a) Retaliation Claim and Wrongful Termination Case at the Same Time

Any employee who suffers discrimination or retaliation as a result of filing a workers compensation claim in California should remember that he generally may have an option of bringing two different claims: (1) the 132(a) claim for retaliation at the Workers Compensation Appeals Board and (2) Wrongful termination/disability discrimination case under ADA/FEHA in court.  Under City of Moorpark v Sup. Ct. (1998), an employee bringing a 132(a) claim is not precluded from having a court action for the same underlying violation.

The advantage of bringing the discrimination/wrongful termination claim in addition to 132(a) case is the additional damages available in wrongful termination cases, which are not available in 132(a) claims. Further, having two cases against the same employer increases the pressure on the employer to settle all claims, since they have to defend both claims and spend money on attorneys on two claims, rather than just one. These two claims would be, of course, in addition to the workers compensation claim itself which would compensate an employee for the underlying industrial injury suffered.

Retaliation for Complaining about Clocking In and Pay Violations Is Ilegal

oral complaints about time clock violationsIn 2011, the US Supreme Court held in Kasten v Saint-Gobain Performance Plastics Corporation (2011) that even oral complaints by employees about not being properly compensated constitute a protected activity within the meaning of anti-retaliation laws. In that case, the plaintiff brought a retaliation lawsuit against his employer under section 213(a)3 of the Fair Labor Standards Act (FLSA). The claim was based on the fact that Plaintiff was terminated shortly after complaining to his management about the location of the time clocks, which prevent him and his co-workers from claiming time and being compensated for the time spent putting on uniform before performing his job duties and taking uniform off after performing the job duties (i.e. the time clock was located between the area where the employees were changing and the area where they were actually performing their duties.

The court analyzed the language of section 213 and reasoned that it forbids employers from terminating any employee because such employee has “filed any complaint”. The Court interpreted “any” to include both written and oral complaints. The Court also found the Defendants’ argument that “filed” means referring to a written complaint only to not be persuasive, and concluded that when the legislature included the term “filed” into the law, it did not intend to mean that it had to be filed in writing, but the complaint only had to be made.

Even When You Can’t Prove Harassment, You Might Still Prove Retaliation Claim

One of the advantages of a retaliation claim from an employee-plaintiff perspective is the fact that even if you can’t prove the underlying harassment or discrimination claim, you might still be able to prove the retaliation claim. A recent case McCoy v Pacific Mar. Ass’n (2013) is a classic example of that situation. In that case, an employee McCoy, who was working as a marine clerk filed a discrimination lawsuit. After the lawsuit was settled, she claimed that during the job training that took place afterwards, the vessel planners retaliated against her by giving her a less desirable room, which increased her isolation from the rest of the vessel planning staff. She presented additional evidence of retaliation in a form of sexual harassment during training.

Although the court actually rejected the jury’s substantial verdict to McCoy on discrimination claims, the court found that there was substantial evidence supporting the conclusion that the employer unlawfully retaliated against McCoy for engaging in a protected activity, and that the retaliation resulted in material alteration of the terms and conditions for her employment.

How Employers Retaliate After Firing You

There two main ways that an employer may retaliate against a terminated employee. The first one is challenging the terminated employee’s unemployment benefits application by trying to argue that the employee was terminated for misconduct. In many, if not most, cases that employee should be able to prevail, showing during the application process or at the unemployment benefits appeal hearing that the employer cannot meet the burden of proving that the employee was terminated for misconduct, and therefore the unemployment benefits should be awarded.

The second common way in which employers retaliate is by giving negative references to the terminated employee’s prospective employers. While merely suspecting that the reason you can’t get a job is because of the negative references from one of your previous employers, it is really worth make sure that the suspected employer does not engage in that kind of unethical and generally unlawful practice. The best way to start is to user the service of one of the major reference check agencies. Just google “reference check” and you will find a number of companies who, for a modest fee, will call your former employer, pretending that they are your prospective employer. The agency representative will ask all the right questions and then will let you know exactly what the employer said about you. If the employer doesn’t say anything bad about you, then you will know that they are most likely not the reason you weren’t able to get job. If they are saying something bad about you, then you can consider what legal steps you can take to make them stop defaming you.

Bad Performance Review Can Be Evidence of Retaliation

In a recent case we handled, we made an argument that a bad performance review after complaining to management about discrimination is evidence of retaliation. We did not hope that this relatively insignificant action by the employer (as compared to demotion, suspension, termination, etc) would be found actual evidence of retaliation by the court.

However, the court surprised us by noting first that under FEHA (Fair Employment and Housing Act), whether conduct amounts to adverse employment action for the purposes of proving retaliation depends on the totality of circumstances in light of the legitimate interests of both the employer and the employee. Then, the court quoted one of the more important California Supreme Cases on retaliation Yanowitz v L’Oreal: “Adverse treatment that is reasonable likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of FEHA”.

Because in our case we faced exactly that situation – the claimant’s future promotions very much depended on his past performance, we were able to satisfy this adverse action requirements for proving retaliation. The fact that the employer stated in its own handbook that their employees’ promotion in part depends on prior performance reviews was very helpful to our efforts to prove the retaliation claim.

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