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Retaliation and whistle blowing FAQs

By Neil E. Klingshirn

Contents


What protection do I have against retaliation by my employer?

The law protects employees from retaliation by employers for asserting  protected rights.  The gist of a retaliation claim is that an employer "gets back" at an employee for doing something protected by law. To win a retaliation claim, employees must prove that they:

  • engaged in protected conduct;
  • their employer took an adverse action against them; and
  • their employer took the adverse action because they engaged in protected conduct.

The starting point for every retaliation claim is protected conduct. If an employer terminates employees for engaging in conduct unprotected by law, the employees will not have a valid claim for retaliation. For example, criticizing the boss's son as lazy is unprotected. Employees fired for doing so will not have a civil remedy for retaliation.

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What conduct is “protected?”

Conduct is protected only when a specific law prohibits retaliation for engaging in the conduct, or when a court finds that retaliation against the conduct jeopardizes established public policy. In other words, "protected conduct” is conduct that a law or a court deems protected. 

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What are some examples of protected conduct?

The National Labor Relations Act (NLRA) protects employees who collectively complain about terms or conditions of their employment, whether or not they are members of a union. The Civil Rights Act of 1964 prohibits retaliation for actions taken in opposition to unlawful discrimination.  The United States Constitution protects public employees from retaliation for exercising their right to free speech when not performing their normal job duties. Safety and environmental laws prohibit retaliation against whistleblowers who report violations of those laws.

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Are employees who oppose conduct that they think is unlawful protected from retaliation if the conduct turns out to be lawful?

If done in good faith, yes.  Retaliation law protects employees who assert rights protected by law even when the employees are wrong about whether their rights were violated.  So long as the employee has a good faith belief that her employer’s conduct is unlawful, he or she can challenge that conduct protected from retaliation. 

For example, a salaried employee may complain to the Department of Labor’s (DOL) Wage and Hour Division that her employer failed to pay her overtime.  If the DOL investigates and concludes that she is not entitled to overtime, the employer cannot fire her for complaining. 

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If I am worried about getting fired, should I complain about discrimination just to play it safe?

Probably not.  You must have a good faith belief that your employer was violating the law. If you do not have such a belief, but complain merely to avoid a discharge, you are not opposing the unlawful conduct, you are not protected, and your employer can lawfully fire away.

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My spouse and I work at the same place. She felt that she was the victim of gender based pay discrimination but is afraid to complain. If I oppose it for her, am I safe from retaliation?

Yes. As long as you oppose unlawful discrimination, you are protected from retaliation. The discrimination does not have to be directed at you.  However, you must engage in some sort of conduct to oppose it, and your employer must have knowledge of that conduct. 

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So if we work at the same place and I complain about something that has nothing to do with her, is she still protected?

Good question. On the one hand, since your spouse did not herself engage in protected conduct, she is missing the first piece of any retaliation claim. However, if the threat of retaliation against her would chill you from exercising your rights, the law ought to prohibit the retaliation. 

Happily, the United States Supreme Court answered this question by holding that both the spouse who engaged in the protected conduct, and the spouse who is a victim of the retaliation, have valid claims and can seek money damages to remedy the harm caused by the retaliation. 

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I heard a manager make a racist remark but said nothing about it until human resources questioned me. I answered truthfully. Was my conduct protected?

Yes. The U.S. Supreme Court found that anti-retaliation protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer's internal investigation.  The Court held that an employee could oppose discrimination by responding to someone else's question just as surely as by initiating the discussion themselves. 

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I complained about a racist statement that my boss made to me and the company reprimanded him. He then gave me unwarranted disciplinary warnings. Can I sue for retaliation?

Probably not, at least not yet.  The employer's adverse actions must be  harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination. Every case is unique, but until a bogus bogus write up results in a suspension, a blocked promotion or a demotion or otherwise causes economic harm, a court could find that the employer's actions are not adverse or harmful enough to justify a retaliation claim. 

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What is an example of an adverse action that was something less than a discharge?

In Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405 (U.S. 2006), the company suspended an employee for 37 days without pay after she made a complaint of gender discrimination. Normally, such a suspension would be sufficiently adverse to support a retaliation claim. In Burlington Northern, though, the company reversed course, reinstated the employee who complained and paid her all of her lost wages. She filed suit anyways, so the question for the Court was whether a suspension that ended up without lasting economic harm was sufficient for a retaliation claim. The Court said that  it was. A reasonable person, faced with a choice of being suspended without pay for 37 days, with no assurance of having the suspension reversed, might well choose not to make the complaint.  

Other possible examples of tangible, adverse actions may include a transfer to an undesirable location, a significant loss in responsibility or prestige, or placement on a an undesirable shift, if those actions would be enough to deter reasonable employees from asserting their rights.

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I quit right after I filed a complaint against my employer with OSHA. Now that employer is giving me bad references because of that complaint. Is that retaliation?

It sure is.  An employer generally cannot retaliate against a former employee.  Courts have allowed employees to recover damages resulting from retaliatory employer references.

In addition, certain actions taken during the course of litigation, such as the filing of a counterclaim designed to intimidate the employee into dropping the lawsuit, might constitute unlawful discrimination.  Again, if the employer’s action would deter a reasonable employee from asserting protected rights, it could form the basis of a retaliation claim.

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What kind of evidence do I need to prove retaliation?

First, you must prove that you engaged in protected conduct. If you opposed unlawful conduct with a written complaint, the written complaint would prove that you engaged in protected conduct. You must also prove that you suffered an adverse employment action. This is rarely in dispute.

Employers will rarely admit that they took adverse action because employees engaged in protected conduct (i.e., a causal connection).  Motive, or the employer's reason for taking the adverse action, is invisible.  Therefore, employees must usually prove a causal connection between their protected conduct and the employer’s adverse action with evidence of:

  • a close connection in time between the protected conduct and adverse action, like where the employer retaliated as soon as it learned of the protected conduct;
  • the lack of an investigation into the employee’s complaint;
  • unequal and more favorable treatment of employees who do not complain;
  • a campaign of harassment directed at the complaining party;
  • hostility towards other complaining employees; or
  • a bogus explanation for the employer’s adverse action.

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How close in time must the retaliation be?

Time is probably the most important evidence of a connection between protected conduct and reprisal.  Since the gist of a retaliation claim is that the employer “got mad and got even,” courts expect employers to hit back quickly.  As a result, courts have dismissed retaliation claims based on adverse actions taken months after the protected conduct.

In some cases the employer might wait patiently to retaliate in a tangible way.  In many cases, the employer will still take less tangible actions early on, such as an immediate, unwarranted reprimand.  Even though a reprimand might be enough for a retaliation claim by itself, it may be the proof necessary to connect a discharge some months down the road to the employee’s protected conduct.

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What sort of unequal treatment indicates retaliation?

The evidence of discriminatory retaliation is identical to that used to prove gender, age, race and other types of discrimination claims.  For example, an employer can retaliate by treating employees who oppose their unlawful conduct differently from and worse than similarly situated employees who did not engage in protected conduct.  

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My employer gave me a bogus reason for terminating me. How can I prove the real reason was retaliation.

If you an prove that your employer's stated reason was:

  • not true, 
  • true, but not sufficient to justify the adverse action; or
  • true, but nonetheless not the real reason for the action
then you can prove “pretext.” If you have proof of pretext, a jury can conclude that the real reason was retaliation. The courts reason that, since an employer is in the best position to know the reason it discharged an employee, proof that the employer made up a bogus reason allows an inference that the employer is hiding an unlawful reason.  Pretext evidence can be enough, by itself, for a jury to find that the real, unlawful reason is retaliation. 

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How could my employer’s failure to investigate my complaint show retaliation?

An employer should investigate every legitimate employee complaint. A failure to do so indicates that the employer did not take the complaint seriously or even resented the fact that the employee made it. 

An investigation into a report of unlawful employer conduct should, at a minimum, include:

  • An interview of the complaining employee, the accused employee and any witnesses.
  • A reasonable conclusion about the validity of the complaint; and
  • A response consistent with that conclusion.

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What can I do stop retaliation short of filing a lawsuit?

First, do not give your employer any justification for retaliation. For example, be the best employee the company ever had.  Be polite and professional, even to the discriminator and retaliator, and never lose your temper.

Second, keep a record of everything that happens to you.  Keep documents that back up what you say. Make important communications in writing by, for example, using email.

Third, respond to unwarranted reprimands with timely, professional rebuttals.  You have to walk a fine line between holding your ground and appearing unwilling to correct alleged performance deficiencies, though. If you are at that point, consider working with an attorney on a response.

Finally, take a look at other employment opportunities.  There is no shame in walking away from an abusive environment.

However, if you do not have a good exit strategy and you allow your employer no excuse to retaliate, the retaliation will either stop or you will be in the best position to pursue a remedy for unlawful retaliation, if that becomes necessary.

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Where can I find more information about unlawful employment retaliation?

My Employment Lawyer has collected Questions and Answers, Wiki articles and Blog articles about unlawful retaliation.  If you still cannot find the answer to your question, Ask MEL and we will send your question to attorneys in your state.

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I want to consult an employment attorney about unlawful retaliation at work. Do you have any suggestions?

You can schedule a consultation with Neil Klingshirn if you are in Northeast, Central or Southeast Ohio (that is, near Akron, Canton, Cambridge, Cleveland, Columbus, Lorain, Marietta, Youngstown or Wooster Ohio).

If you live live elsewhere, we suggest that you:

  • search for a lawyer on My Employment Lawyer;
  • search the National Employment Lawyer's Association's (NELA) attorney directory;and
  • search the attorney directory of a state affiliate NELA, such as the California Employment Lawyer's Association. To find an affiliate in your state, search for "[State] Employment Lawyer's Association"; or
  • consult the general "Bar Association" in your area, which is a trade association of local attorneys.  It will probably have an attorney referral service. Ask for attorneys who practice employment law.

Most attorney directories and referral services provide only the attorney's name and contact information. Therefore, you may need to do some more research. As a general rule, the best employment attorneys:

  • Write and speak on employment law topics;
  • Are recognized by their peers (for example, are listed in Super Lawyers or have "AV" ratings); and
  • Are Board Certified in employment law in those states that offer specialty certification.

On mel, you can see who has contributed articles and answers to mel, as well as the quality of that work.

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