Q: What protection do I have against retaliation by my employer?
A: The law protects employees from retaliation by employers for asserting rights that are protected by law. To win a retaliation claim, you must prove that:
- you engaged in protected conduct;
- afterwards, your employer took an “adverse action” against you; and
- the adverse action and the protected conduct are “causally connected.”
In other words, you must prove that your employer got mad and got even because you engaged in conduct protected by law.
Q: What conduct is “protected?”
A: State and federal laws that create work place rights almost always include a prohibition against retaliation. In addition, the United States Supreme Court ruled that the prohibition against “discrimination” in certain federal laws includes a prohibition against “discriminating against people who complain of unlawful discrimination.” In addition, the United States Constitution protects public employees from retaliation for exercising their right to free speech about matters of public importance, unless the matter on which the employee spoke involves the employee’s official job duties or the government’s interest in operating efficiently outweighs the employee’s interest in exercising his or her right to free speech.
Q: What if I complain about discrimination and later discover I was mistaken? Am I still protected from retaliation?
A: Yes. So long as you had a “good faith belief” that your employer’s conduct was unlawful when you complained, your employer cannot retaliate against you.
For example, a salaried employee may complain to the Department of Labor’s (DOL) Wage and Hour Division about her employer’s failure to pay her overtime. If the DOL investigates and concludes that she is not entitled to overtime, she still has right to be free from reprisal for complaining, since her conduct was “protected.” On the other hand, if an employee complains about something that no reasonable employee would consider unlawful, then the employee has not engaged in protected conduct.
Q: My job situation is shaky. Should I complain about discrimination to keep from getting fired?
A: No. If you are actually complaining to avoid a discharge, you may not be able to prove a “good faith belief” in the complaint you make. In addition, complaining about discrimination and other workplace right violations may irritate your employer, prompting retaliation, especially if the complaints are not well founded.
Q: My friend feels she was the victim of gender-based pay discrimination at the place we both work, but she is afraid to complain. If I complain for her, am I covered by the anti-retaliation laws?
A: If you complain because you oppose the discriminatory pay, you have engaged in protected conduct, even if you are not a victim of the discrimination yourself. The key, though, is that you must oppose the conduct. If you are merely a messenger for your friend and have no objection to the pay practice about which she complains, then a court might conclude that you did not engage in the protected conduct of “opposing discrimination.” If you wish to complain on behalf of your friend, you can avoid such a trap by presenting the objection as your own complaint against a discriminatory practice.
Q: I complained about a racist statement my boss made to me. The company reprimanded my boss, who has now written up bogus disciplinary warnings against me. Can I sue for retaliation?
A: Probably not—at least not yet. Anti-retaliation laws cover only those employer actions that would have been materially adverse to a reasonable employee or applicant. In other words, the employee needs to show that the employer’s retaliatory action might dissuade a reasonable worker from making or supporting a charge of discrimination.
A 37-day suspension without pay was sufficiently adverse for the U.S. Supreme Court to find a retaliation claim, even where the employee later received back pay for the suspension. Similarly, reassignment to a position with similar pay, but more difficult and less desirable duties may be materially adverse to a reasonable employee.
This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Akron attorney Neil E. Klingshirn of Fortney & Klingshirn.