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, an employee must prove that:

  • he engaged in protected conduct;
  • his employer took an “adverse action” against him; and
  • the employer took the adverse action because the employee engaged in protected conduct.

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What conduct is “protected?”

Laws prohibiting workplace discrimination and other workplace laws protect employees who assert the rights given to them by those laws.  “Protected conduct” is thus the conduct that specific laws define as 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 to be free from employment discrimination.  The United States Constitution protects public employees from retaliation for exercising their right to free speech.  Governments cannot, for example, use their power to chill public speech.  Governments therefore cannot retaliate against citizens working for them if they exercise their free speech rights.

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Is an employee who mistakenly reports unlawful conduct that turns out to be lawful still protected from retaliation?

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, she can challenge that conduct free from a threat of retaliation. 

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, the employer cannot fire her for complaining. 

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If I am worried about getting fired, should 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 the only reason you complained was to avoid a discharge, you may have had a good faith belief.  In addition, complaining about discrimination and other workplace right violations may irritate your employer, tempting it to retaliate, especially if the complaints are not well founded.

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

Probably.  Courts have tended to push the boundaries of protected conduct to reach people who are helping others assert their workplace rights. The federal Civil Rights Act prohibits an employer from discriminating against its employees “because (such employee) has opposed any practice made unlawful” by that law.

Therefore, your employer cannot retaliate against you for opposing unlawful discrimination against your spouse.

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So if I complain about an environmental issue that has nothing to do with my spouse, they cannot retaliate against her, right?

Probably not, since she herself did not engage in protected conduct. Even though the threat of retaliation against a spouse would chill a reasonable person from exercising their rights, several federal appellate courts hold that the retaliation rights in the federal anti-discrimination law is limited to people who have personally engaged in protected activity by opposing a practice, making a charge, or assisting or participating in an investigation about discrimination.

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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 conduct similar to yours amounted to opposition of discrimination. The Court held that an employee could oppose discrimination by responding to someone else's question just as surely as by provoking 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.  You need a so-called “tangible, adverse employment action in order to file a suit.”  Unless the retaliation amounts to a harassment, discussed below, an adverse employment action must result in a monetary loss to be tangible.  Therefore, a bogus write up without a suspension or demotion is probably not tangible enough.

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How tangible does retaliation have before I can file a lawsuit?

The U.S. Supreme Court defined a tangible, adverse action as one that:

would have been materially adverse to a reasonable employee or applicant. . . . [A] retaliation plaintiff (must) show that the challenged action well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.

 Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405 (U.S. 2006). In Burlington the company suspended an employee for 37 days without pay after she made a complaint but reversed course and paid the employee for her lost wages. The question for the Court was whether the adverse action (the suspension) was "tangible" once the company made sure that the employee did not lose money. The Court said that a suspension, even if later cured, was a tangible adverse action, since a reasonable person would not make complaint in the first place knowing that she would go 37 days without pay with no assurance of being paid. 

Other possible examples of tangible, adverse actions may include transfer to an undesirable location, a serious loss in responsibility or prestige or placement on a lousy shift, if they would be enough to deter 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. 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.

Courts may also treat unwarranted criminal prosecutions and unjustified government investigations as retaliatory.  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, are covered.  Again, if the employer’s action will deter a reasonable employee from asserting protected rights, it could form the basis of a retaliation claim.

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How can I prove retaliation at work?

Since employers rarely admit retaliation, employees must prove that there is a connection between their protected conduct and the employer’s adverse action.  Employees can prove a connection with evidence of:

  • the lack of an investigation into the employee’s complaint,
  • unequal treatment of the complaining employee;
  • an adverse action close in time to the protected conduct;
  • a pattern of adverse actions and even outright hostility over time towards 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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Is there such a thing as retaliation by harassment?

Yes.  A campaign of retaliatory harassment, even without a discharge or other economic loss, can be severe and tangible enough for a lawsuit. 

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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.  This evidence includes the employer treating you differently from and worse than similarly situated employees who did not complain.  It can also include a new employer policy that has a singularly adverse affect on the complaining employee.

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How can a bogus employer explanation for the adverse employment action prove retaliation?

A bogus employer explanation is known as a “pretext.” Since an employer is in the best position to know why it discharged an employee, proof that the employer made up a bogus reason allows an inference that the employer is hiding an unlawful reason.  That can be enough 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 employee complaint. A failure to do a minimum investigation indicates that the employer did not take the complaint seriously, which may permit the inference that the employer resented the complaint.   A minimum investigation should 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 while my boss is retaliating against me if I cannot file a lawsuit or choose not to do that?

First, do not give your employer any excuse to retaliate against you with discipline. Be the company’s best employee ever.  Be polite and professional to the retaliator.

Second, keep a record of everything that happens to you.  Keep documents that back up what you say as true.

Third, respond to unwarranted reprimands with polite rebuttals.  You have to walk a fine line between holding your ground and appearing unwilling to correct alleged performance deficiencies.  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 lined up and you allow your employer no excuse to retaliate, the retaliation will either stop or you may have a good retaliation case that is worth pursuing.

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Where can I find more information about unlawful employment retaliation?

Mel 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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