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Tuesday, January 23, 2018

Has My Boss Retaliated Against Me? What Comprises Retaliation?

Employees may feel as though their job status is in limbo, when after what they believed to be a frank and honest discussion with their boss, they begin to feel a chill in the workplace atmosphere, experience that others are distancing themselves from them (fearing a potential reprisal) and some of the conditions of their employment have changed. It is very disturbing when an employee bought things to the attention of management in good faith, such as what he/she believed were discriminatory practices, unsafe working conditions or that the employer was not adhering to certain legal regulations or guidelines, and felt a burden lifted and all was "now good", only to subsequently think the employer is retaliating for such honest reporting.

It is illegal for an employer to retaliate against an employee because the employee engaged in a "protected activity". Some "protected activities" include reporting to the employer, reasonable beliefs that the employer was in violation of laws or regulations. By way of example, you were engaged in a protected activity if you reported that you were discriminated against or harassed because of your race, age, sexual orientation, etc., or any of the other protected classes under discrimination statutes. If you engaged in a protected activity and your employer retaliated, that retaliation is illegal if it amounts to an "adverse action" against you. An "adverse action" against you can be a termination or any action that results in a loss of pay, but could be a less extreme action against you, yet could still comprise an "adverse action" for legal purposes.

A single change in the conditions of employment may not be definitely actionable to legally constitute an "adverse act" of illegal retaliation, unless it is a termination or any action that results in a loss of pay; or if it is an extreme hostile act, i.e., loudly cursing at an employee and humiliating him and using a racial epithet. However, Courts have held that numerous small acts may be deemed an adverse action when considered in combination as one whole continuing act in a continuum over time. There is no bright line defining rule as to the degree of adversity that must be present to be considered an "adverse action" for it to be deemed illegal retaliation for engaging in protected activity. Every case is fact specific.

A 2006 U.S. Supreme Court opinion modified the standards for what comprises an adverse action in retaliation claims. A retaliation claim plaintiff need not show demotion or termination to qualify it as an "adverse action". The U.S. Supreme Court in Burlington, 548 U.S. 53 (2006), allowed the reassignment to a less prestigious employment responsibility to meet the evidentiary burden of an adverse employment action, even when the task still fulfills the plaintiff's job description.

The Burlington Court held that a reassignment of duties can constitute an act that is materially adverse even when both the former and present duties fall within the same job description. Burlington held what is a "materially adverse action" under the anti-retaliation provisions encompasses a broader range of actions than an "adverse action" under the statutes prohibiting discrimination. The Court stated, "Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances."

An adverse act for purpose of anti-retaliation covers any employer action that might well deter a reasonable employee from complaining about discrimination. An action need not be materially adverse standing alone, as long as the employer's retaliatory conduct, considered as a whole, would deter an employee’s protected activity, i.e., another employee will not report discrimination because they fear the employer will retaliate against them also.

Types of Adverse Actions for Retaliation Claims

The most obvious types of adverse actions are denial of promotion, denial of job benefits, demotion, suspension, and termination, anything that involves a loss or potential loss of income.

Other types of adverse actions may include any other type of adverse treatment that in the circumstances might well dissuade a reasonable person from engaging in protected activity.

Some Examples of Acts That May Be Deemed an Adverse Action, Particularly When Considered Collectively as One Whole Continuing Act:

  • Giving the employee a dropped score in performance evaluations, particularly when the scores were higher before the employee engaged in the protected activity.
  • Making the employee's work environment less desirable and harder for him to be productive, example, a employee has a large quiet work area with a window and large desk, and after the employee engages in the protected activity, the boss moves him to a noisy common work area and smaller desk.
  • Instituting new rules for the employee regarding breaks, etc., that are much more stringent.
  • Transferring the employee to a different workplace geographic location.
  • Changing the employee's hours so it is difficult to work. A materially adverse action could include moving an employee who has a straight schedule to an "on-call" schedule, or revoking a previously-approved flexible schedule. Washington v. Illinois Dep't of Revenue, 420 F.3d 658, 662 (7th Cir. 2005) (holding that because employee's flex-time schedule was previously approved to care for her child with a disability, its revocation could be materially adverse given the financial and other consequences that resulted).
  • Excluding the employee from business lunches where the employee was formerly included and could network with others to climb the corporate ladder.
  • Denying opportunities to attend educational seminars to increase employment related skills. The US Supreme Court in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006) stated that a supervisor's refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight, but to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement might deter an employee from complaining about discrimination.
  • Increased scrutiny and requiring more status reporting.
  • Assigning the employee to work in in less profit-making departments and sales regions thereby decreasing potential for commissions.
  • Assigning an increase in total job duties.
  • Assigning less desirable job tasks.

Some Court decisions where acts of the employer were ruled to be adverse actions are:

Kessler v. Westchester Cty. Dep't of Soc. Servs., 461 F.3d 199, 209 (2d Cir. 2006) held that transfer of high level executive without any loss of pay was actionable as retaliation where the employee was transferred to a non-supervisory role and with less substantive duties.

Walker v. Johnson, 798 F.3d 1085, 1095 (D.C. Cir. 2015) held that the "denial of a deserved rise in performance rating" can be actionable as retaliation.

O'Neal v. City of Chi., 588 F.3d 406, 409-10 (7th Cir. 2009) held that reassignments negatively affecting plaintiff's eligibility to be promoted from sergeant to lieutenant on the police force constituted a materially adverse action.

Billings v. Town of Grafton, 515 F.3d 39, 53 (1st Cir. 2008) ruled there was sufficient evidence for a jury to find that in retaliation for Plaintiff's complaints about sexual harassment, she had been subject to a materially adverse action when the employer transferred her to a less prestigious position which provided much less contact with the Board of Town of Grafton, required less experience and fewer qualifications, and she reported to a lower-ranked supervisor.

Loya v. Sebelius, 840 F. Supp. 2d 245, 252-53 (D.D.C. 2012) held that it was materially adverse to move plaintiff's office to a different building in the same complex, where the move made it difficult for her to complete her job duties and diminished her standing as a senior staff member, and contributed to a loss of responsibilities.

There is no clearly drawn, bright line rule. However, collective acts when experienced as a whole, are an adverse action against the employee when they are likely to dissuade that employee or other workers from engaging in “protected activity”, i.e., reporting discrimination or whistle-blowing.

If you engaged in a protected activity, and your employer commenced collective acts, while if singular may seem trivial or may or may not be sufficient, but when experienced as a whole, make your workplace hostile or fearful for you, it could be a retaliatory adverse action.

What You Can Do

If you engaged in a protected activity in your workplace and think that your employer is retaliating against you as a result, you should contact an experienced employment law attorney to explore your legal options in the safest way for you.

I am an aggressive and passionate employment law attorney who will be aggressive about enforcing your rights. Every situation is fact specific, and if you are a person who believes you may be the target of the employer's illegal acts, please contact Hope A. Lang, Attorney at Law, today for a free consultation

Hope A. Lang, Attorney at Law serves clients throughout southern and northern New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, western and northern NJ to meet with clients.

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