DISCRIMINATION BY RETALIATION

Retaliating for Discrimination Complaints is as Improper as Workplace Bias itself, with Broad Applications that Provide Workers Rights to File Suit

Most employers should know by now that retaliating against employees who complain about discrimination is as illegal as the act of discrimination itself. This is true regardless whether the underlying claim itself has merit, so long as the worker involved has a good faith basis for bringing the charge.

What’s surprising to many, however, is the scope of protection that anti-retaliation laws provide. They can cover conduct that might not be reached by underlying discrimination laws, including events that occur outside the workplace. By ensuring employees have ‘unfettered access’ to legal rights such as the power to bring suit, anti-retaliation laws provide broader protections for employees – and, consequently, broader risks for employers – than the claims of bias on which they normally rely.

Most commonly, retaliation claims involve events that occur on the job. Perceived victims say they were improperly disciplined, lost a promotion, or, perhaps, suffered subtler discriminatory conduct such as a cold supervisory shoulder or exclusion from office meetings. This occurred, they claim, because they took steps against perceived discrimination in the workplace. For a retaliation claim to be valid, an employee must prove that the misconduct occurred for this reason. That might mean that he or she complained about discrimination or was a witness to it. Whatever the case, retaliation is illegal only if the improper conduct is based on the employee’s prior exercise of a legally protected right.

In 2006, the Supreme Court made clear both that anti-retaliation protections are expansive and that the misconduct complained of must do real harm to the employee under the particular circumstances that might prevail. While the law does not protect against “petty slights,” the Court held, context can make otherwise insignificant conduct legally actionable. One person’s minor schedule change, for example, might bar another from working altogether due to child care issues. The key question in court is not what an employer did, but whether the conduct dissuaded a worker from exercising rights.

Employers involved in retaliation cases have long understood the financial risks. These types of charges can bring the same level of damages as do other discrimination claims. In one case, the Massachusetts Commission Against Discrimination awarded more than $100,000 in emotional distress damages to an employee based on her assignment to an undesirable job. Add to this risk the cost of defending a retaliation suit and the employee’s right to have her legal fees paid by the employer, and it’s easy to see just how costly a retaliation suit can be.

As with other types of discrimination cases, then, it’s critical for employers to understand how the law works, at least in general terms, and to establish procedures that protect against lawsuits. The first step is to ensure that managers know what’s forbidden in the workplace and how to respond when questionable conduct comes to their attention. Well-trained managers are the first line of defense to both retaliation and discrimination lawsuits.

It’s also essential for companies of all sizes to create and follow policies for investigating and dealing with discrimination complaints. State law mandates that most companies have written sexual harassment policies, and wisdom dictates that these policies cover other sorts of harassment as well. They should describe the types of conduct that are improper and the steps an employer will take when it receives a complaint. Outlining the investigative process establishes processes that, if followed, reduce the risks of retaliation claims by ensuring both full evaluation and review by multiple sets of eyes.

By Attorney Jack K. Merrill - Framingham, MA Employment Lawyer

Attorney Jack K. Merrill is a Massachusetts employment lawyer and specializes in employment law and civil litigation. He counsels small businesses and individuals on discrimination cases and other employment related legal matters. 

With law offices in Framingham, MA and Milford, MA, our employment law lawyers provide legal services to individuals and businesses throughout the Boston metro west and Worcester county region including Ashland, Dedham, Framingham, Franklin, Hopkinton, Maynard, Marlborough, Milford, Natick, Needham, Newton, Shrewsbury, Sudbury, Waltham, and Worcester, Massachusetts.