Preventing Employer Retaliation and Winning Retaliation Cases: If You Plan to Protest Discrimination, Protest Loud and Clear

By: Leizer Goldsmith

If you have been discriminated against on the job but not fired, and you want to keep your job, you must carefully weigh whether or not to protest the discrimination. One thing is for sure, however: if you intend to protest, you must do so loudly enough and clearly enough to protect yourself from reprisals by your employer.

Employees who have suffered a failure to promote, unfair discipline or a hostile work environment, but who have not been fired, are often confused as to what steps they should take. On one hand, they desperately want justice, but on the other, they fear losing their jobs if they fight back.

Happily, federal law prohibits employers from retaliating against those who protest discrimination, even if the employee’s allegation turns out to be incorrect as a matter of law. All that is required to invoke the protection is that the employee possessed a good faith belief that he or she was discriminated against. Also helpful to employees is the fact that protection from reprisals supports not only those who complain to the Equal Employment Opportunity Commission (EEOC) or file a lawsuit, but those who register any form of “opposition” to discrimination. For the most part, therefore, employees who expressly tell the boss that he or she is discriminating, cannot lawfully be fired or otherwise retaliated against for their courage.

Retaliation claims are often very compelling because of the timing involved. For instance, I have litigated many cases in which employees have been fired within days or weeks of their protected opposition to the employer’s discriminatory practices. The defenses available to employers in this situation are few.

A common defense to retaliation claims, is the employer’s assertion that it was not aware of the protest or the identity of the protester, and therefore could not have been retaliating as a result of it. For instance, in one hiring case, the employee filed an “anonymous” complaint with an EEO office against the official who later refused to hire him. Although the discriminating official admitted that he had been informed of the complaint and interviewed about it before he made the decision not to hire the protester, he denied knowing the identity of the protester. An administrative judge later ruled that even though it was proved that the official knew the protest was lodged either by the protester, or alternatively by just one other possible person, the protester could not win his case because he had failed to prove to a certainty that the alleged retaliating official knew the protester’s identity at the time he failed to hire him. In another case, the victim sent a letter to five different management officials, stating that she had been discriminated against, but failed to send a copy to the officials who had the actual power over the decision to re-hire her. In that case, even though it seems obvious that at least one of the other five officials would have notified the manager with responsibility for the relevant hiring, the officials who decided not to rehire the discrimination victim alleged that they had no knowledge of the protest at all. The outcome of that issue in court is not yet known.

The “I didn’t know” defense cannot be available to employers whose responsible officials have received a written complaint of discrimination with receipt verified by certified mail, e-mail certification or a fax return sheet indicating that the complaint was sent. Eyewitnesses to a verbal discussion about the discrimination allegations can serve the same purpose. It is therefore critical that employees send or communicate their protests directly to the employer’s bad actors, and not just to outside agencies or more sympathetic management personnel.

Contrary to the widely disseminated view that employers are paralyzed by the fear of discrimination suits, there are many employers who will respond to discrimination or harassment complaints with a swift dismissal of the protester. I have seen it over and over again. As a result, employees should never protest discrimination without weighing the possible consequences. Once a decision is made to protest, that protest must be clearly and forcefully communicated to the responsible management officials who have power over hiring, firing and other decisions of importance to the protester. If possible, prospective protesters should consult with employment counsel before filing their complaints.

Employees must assume that the bad actors are going to find out about their protests through other management officials, unless there is a very good reason to believe otherwise. Therefore, there is generally not much to lose by telling them directly, and much to gain. Once the protest has been made known to all those with power over the employee, if the employer decides to go ahead and retaliate anyway, the employee may be in a strong position for litigati.

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