Employment Retaliation in the Workplace
Corporate Employers must ensure that employees are not subjected to sexual harassment or other forms of illegal discrimination. Employers must protect employees from retaliation who report possible sexual harassment or discrimination. Specifically, under Title VII and Florida law, an employer is prohibited from taking or allowing an “adverse employment action” against an employee because he or she has challenged or opposed a discriminatory employment practice, or because she has made a charge, testified, assisted or participated in any manner in opposing a discriminatory action.
This applies to either quid pro quo or hostile work environment sexual harassment claims, which are discussed in detail elsewhere in the Fraley Law Firm, P.A. website.
What is an “adverse” employment action? Certain employer actions – such as denial of a promotion, demotion, suspension or discharge – are obvious and blatant “adverse” employment actions. However, an adverse employment action may include less severe actions.
In June of 2006, the United States Supreme Court, our highest and most powerful court, ruled that retaliation occurs when a Corporate Employer causes harm to an employee outside of the workplace. See Burlington Northern & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2412 (2006). In Burlington Northern, an example was used of an employer that filed false charges against a former employee who complained about discrimination. Such an action is not directly related to work, but would have a serious retaliatory effect on employees.
In the Burlington Northern case, the Supreme Court held that an adverse employment action is any action that would “dissuade a reasonable worker from making or supporting a charge of discrimination.” In short, was something done to the employee that would make other employees scared to come forward? In such instances we need to think about how we would feel if the kind of action was taken against us or a family member. Would we be scared or worried about coming forward and going to Human Resources? Therefore, adverse employment actions include changes in the job duties, as was the case in Burlington Northern. In that case, the Supreme Court found that the reassignment of a female factory worker from forklift duty to the more difficult and “dirtier” track laborer tasks provided sufficient evidence of retaliation. Every Corporate Employer knows that it is illegal to just come out and obviously punish or fire someone who has complained- so the law must prevent the sneaky and subtle methods that some employers use to force employees out.
Thus, an employer’s decision to reassign an employee to handle less-desirable duties within the organization – while not an official demotion – is an adverse employment action if it would make a reasonable employee think twice about coming forward and reporting sexual harassment or any other kind of illegal discrimination.
An individual who alleges retaliation need not be the same person who was subjected to the discrimination. So, for example, a male employee may claim retaliation because he reported the sexual harassment of a female employee. Thus, employees are protected from retaliation for reporting discrimination to a court or to an administrative agency such as the Equal Employment Opportunity Commission (EEOC).
In summary, employers must not retaliate against the person who complains of sexual harassment or other illegal discrimination, or against any other employees who participates in the investigative process. If a complaint is made, the company is required under the law to investigate. If the employee who complained is punished in any way, that is illegal and may permit the employee to recover a substantial punitive damages in the hundreds of thousands of dollars. Our society needs the victims of sexual harassment and witnesses to feel they can come forward without being punished.
If you have a question about whether you have been subjected to sexual harassment or punished for reporting sexual harassment, please feel free to call the Fraley Law Firm. We do not charge for consultations and under the law everything you tell us is confidential until you decide what you want to do. Also if we take your case, it will be on a Contingency Fee basis, meaning if we do not obtain money damages for you, you will not owe us anything. We do this so that everyone has a right to seek redress in our legal system without regard to wealth or income.
Please consider that when you challenge inappropriate workplace behavior you are not only asserting your right to work in a workplace free of sexual harassment, and standing up for US Constitutional Rights, you are protecting our daughters, sons and family members from being stalked, bullied, losing their livelihood and being intimidated because of sex.
Vigilance makes the workplace safer and more secure for everyone in our community.
The Fraley Law Firm, P.A.