What is retaliation?  Can an employee claim retaliation any time an employer takes action against an employee who complains about his or her work?  The short answer is no.  To establish a claim for retaliation, an employee must prove three things:  1) That the employee engaged in protected activity; 2) That there was a materially adverse action taken by the employer; and 3) That there is a causal connection between the protected activity and the materially adverse action.

Protected activity includes either participating in an equal employment opportunity (EEO) process or opposing discrimination.  Participating in an EEO process can include filing a charge with the EEOC, filing a lawsuit, testifying as a witness, or participating in an investigation.  However, participation in a protected activity can also include less formal activity such as filing an EEO related complaint with human resources.  Opposition includes any activity where the employee communicates a belief that the employer has engaged in an EEO violation.  Whether based on participation or opposing discrimination, an employee does not have to prove that the employer’s conduct is unlawful.  Rather, as long as the employee has a good faith belief that the underlying conduct was unlawful, a claim for retaliation may still exist. 

Title VII of the Civil Rights Act of 1964, the Age Discrimination and Employment Act, Title V of the Americans with Disabilities Act, Section 501 of the Rehabilitation Act, the Equal Pay Act and Title II of the Genetic Information Non-Discrimination Act all contain anti-retaliation provisions.  The EEOC has jurisdiction to investigate claims of retaliation involving all of these laws and for most of these laws, an employee is required to file a charge with the EEOC before bringing a lawsuit.  There are other laws, some of which we have already discussed, which also contain anti-retaliation provisions.  This would include the Family and Medical Leave Act and the Fair Labor Standards Act; however, the EEOC does not have jurisdiction to investigate violations of these laws. 

It is important to note that an employee who complains about his or her job is not necessarily engaging in protected activity.  As an example, an employee who files a complaint with Human Resources claiming to have received an unfair review from his or her supervisor, is likely not engaging in a protected activity.  Unless that employee’s complaint stems from some complaint of discrimination related to race, gender, religion, disability, age, national origin or for exercising a protected right, it will not be considered protected activity.  If an employee is not engaged in a protected activity, then a claim for retaliation will not lie even if the employer takes adverse action against the employee.

The damages available to an employee who proves retaliation vary from case to case but may include: economic and non-economic compensatory damages, punitive damages, attorney’s fees and other injunctive and equitable relief.  Likewise, the time limitations for bringing a claim are also going to vary depending on the type of case.  If you feel you have been a victim of retaliation, please contact Dworken & Bernstein for a free consultation.

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