Workplace Retaliation

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Massachusetts employers need to comply with a wide range of workplace and anti-discrimination laws, including Title VII of the federal Civil Rights Act of 1964, the Massachusetts Fair Employment Act, the Americans with Disabilities Act, and the Family & Medical Leave Act, just to name a few. In many cases employees may be reluctant to assert their rights under these laws due to fear of negative consequences at work. These laws also contain strict provisions against workplace retaliation by the employer and its agents.

Indeed, workplace retaliation has become a more significant legal issue in recent years. In some cases employers may simply be ignorant of the law. But ignorance is never an excuse. Likewise, many employees may not be aware of how anti-retaliation laws protect them when they speak out against potentially illegal conduct in the workplace.

What is Workplace Retaliation?

Interpersonal conflicts occur in every workplace. But retaliation is not about working in a difficult environment–or even dealing with a terrible boss. Rather, it is a legal concept that expressly relates to employee rights under Massachusetts and federal laws.

Basically, an employer is not allowed to punish an employee who complains about illegal treatment at work.

This includes, but is not limited to, complaints arising from the following situations:

  • The employer is not paying the employee the legally mandated minimum wage in Massachusetts ($11.00 per hour as of 2018).
  • The employer is not paying a non-exempt employee the proper overtime wage–i.e., time-and-a-half–for hours worked above 40 per week.
  • The employee has been subjected to discrimination at work on the basis of sex, race, color, religion, national origin, ancestry, or age in the case of workers who are 40 years of age or older.
  • The employee has been refused a “reasonable accommodation” for a documented disability.
  • The employee refuses to follow an order that would result in illegal discrimination against another employee.
  • The employee testified as a witness against the employer in a legal proceeding before the U.S. Equal Employment Opportunity Commission (EEOC) or the Massachusetts Commission Against Discrimination (MCAD)

 

In this context, a “complaint” does not necessarily mean that the employee has filed a lawsuit or gone outside the company with their concerns. Anti-retaliation laws protect employees who utilize internal human resources and dispute resolution procedures as well.

As for what specific acts constitute retaliation, obviously an employer cannot fire an employee who complains about illegal treatment. But most retaliation cases are not so blatant. Retaliation often takes more subtle forms, such as reducing an employee’s hours or pay, assigning them to a less-desirable post, or simply threatening to punish them if they continue to pursue their complaint.

How Do I Prove Retaliation?

A critical thing to understand about retaliation is that it is considered a separate legal offense from any underlying discrimination or wage hour violation. In other words, even if the employer did not commit the actual offense alleged by the employee, it may still be held liable for retaliation. As explained in a 2016 decision, “An employee bringing a retaliation claim is not complaining of discriminatory treatment as such, but rather of treatment that ‘punish[es]’ her for complaining of or otherwise opposing such discriminatory treatment.”

As explained by the Supreme Judicial Court, to bring a retaliation claim an employee must satisfy at least four threshold requirements:

  • First, the employee “reasonably and in good faith believed that the employer was engaged in wrongful discrimination [or conduct].”
  • Second, the employee “acted reasonably” in response to that good-faith belief. Again, this does not necessarily mean the employee filed a formal complaint. It may simply be an internal “protest” or informal conversation with a supervisor.
  • Third, the employer took an “adverse action” against the employee.
  • Finally, the employer’s action was based on a “forbidden motive,” i.e. it was retaliation against the employee for engaging in a “protected activity.”

With respect to the final requirement–forbidden motive–the courts have said employees may rely on “indirect evidence” since direct evidence of retaliation is often hard to come by. However, the employer may also introduce evidence that its adverse action had some legitimate motive other than retaliation. The employee may then attempt to rebut this explanation, in effect proving it was nothing more than a “pretext” to mask the employer’s illegal retaliation.

Are Former Employees and Undocumented Immigrants Protected by Workplace Retaliation Laws?

Anti-retaliation laws are deliberately broad in scope and application. As the U.S. First Circuit Court of Appeals in Boston has put it in relation to the anti-retaliation provision of Title VII, “we have interpreted the provision as casting a very broad protective cloak.” Among other things, anti-retaliation laws protect job applicants as well as current and former employees.

At the state level, MCAD and the Massachusetts Attorney General’s Office has made it abundantly clear that anti-retaliation laws protect all workers “irrespective of immigration status.” This is important because some employers may threaten to report an employee to immigration authorities in retaliation for reporting illegal conduct, in particular wage and hour violations. But as the Attorney General stated in a 2017 memorandum, workplace protections apply to all workers and her office will not “inquire about an individual’s immigration status” or “tolerate retaliation against workers who lodge complaints with the Attorney General’s Office or otherwise assert their legal rights.”

Workplace Retaliation Links & Resources

Facts About Retaliation – Resource about retaliation provided by the Equal Employment Opportunity Commission (EEOC).

Questions and Answers: Enforcement Guidance on Retaliation and Related Issues – EEOC webpage with information on the process around reporting retaliation and what constitutes retaliation. This also notes the federal laws which provide protection against retaliation.

Protections against retaliation – Provides background about retaliation and what events qualify as retaliation. Also has links to Anti-Retaliation fact sheets in various foreign languages.

General Laws Part I Title XXI Chapter 149 – One of the Massachusetts laws which provides protection against retaliation.

General Laws Part I Title XXI Chapter 151 – Another Massachusetts law which provides protection against retaliation.

Statistics:

  • In 2017, 18% of complaints filed to the Massachusetts Commission Against Discrimination alleged retaliation. The total complaints of retaliation were 902.[1]
  • In 2017, the EEOC received 41,116 complaints of retaliation. This means that 48.8% of complaints filed to the EEOC alleged retaliation.[2]
  • Individuals who alleged retaliation in a complaint to the EEOC received $192 million in monetary benefit during the 2017 Fiscal Year.[3]

[1] https://www.mass.gov/files/documents/2018/04/06/2017-mcad-annual-report-4-1-2018.pdf

[2] https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm

[3] https://www.eeoc.gov/eeoc/statistics/enforcement/retaliation.cfm

What Steps Should I Take If I Suspect Workplace Retaliation?

The first thing any employee should do if they suspect retaliation is to talk with their supervisor or the employer’s human resources department. If the employer refuses to acknowledge retaliation or refuses to correct the underlying problem, the employee should contact a qualified Massachusetts employment counseling and litigation attorney. The employee should also gather and preserve any evidence that could support a retaliation claim such as emails or performance evaluations.

The attorneys at Rodman Employment Law are well equipped to assist employees to identify and address acts of workplace retaliation that may violate state and federal laws. Ideally, we help our clients resolve a retaliation issue without the need for litigation. But we are also prepared to bring a complaint with the appropriate government agencies and, when necessary, file a lawsuit to advance our clients’ rights in court. The attorneys at Rodman Employment Law can provide you with information tailored to your situation. Call us today at (617) 820 5250 or contact us online to speak with a member of our team.

 

Rodman Employment Law

BOSTON EMPLOYMENT LAW FIRM