Retaliation Claims in Employment

Many employment statutes have anti-retaliation provisions. Retaliation includes job terminations and other adverse job consequences. The federal discrimination statutes all have retaliation provisions (Discrimination Based Upon Age, Disability, Pregnancy, Race, Religion, and Serious Medical Conditions – FMLA). OSHA also has anti-retaliation provisions meaning an employee cannot be retaliated against for making a complaint to OSHA. Under the Federal False Claims Act, employees of companies receiving federal funds cannot be fired for complaining false claims are being made to obtain the federal funds. Employees of publicly traded companies also receive protection against retaliation if they complain of Securities and Exchange Act (SEC) Violations or fraud.

The Following Statutes Contain Anti-Retaliation Provisions:

• Title VII which prohibits discrimination in employment based upon Race and Sex
• Americans Disability Act (ADA) which prohibits discrimination based upon Disability,
• And provides reasonable accommodations
• ADEA which prohibits Age discrimination
• Family Medical Leave Act that protects employees who have serious medical conditions
• Pregnancy Discrimination laws
• Fair Labor Standards Act (FLSA) if an employee complains about certain illegal wage

Files a complaint for Overtime Violations

• OSHA which protects health and safety in the workplace
• SOX which protects employees of publicly traded corporations who complain of their

Employer fraud and SEC violations

• Federal False Claims Act protects employees who complain their employer has made

Federal False Claims

Employment retaliation lawsuits may succeed if the employee does not prove the illegality of the underlying conduct they complain about, but are retaliated against (including being fired) for complaining. This favors the policy employees should not be shy about complaining about potential illegal issues even if the issues do not end up being illegal.

Participation in protected activities can be broadly construed. Testifying truthfully in a sexual harassment investigation and then being fired is retaliation. Speaking to a government entity during an OSHA investigation and being fired as a result is retaliation. Refusing to destroy evidence of discrimination and then being fired is retaliation.

• Disobeying an employer's directions to perjure oneself in a discrimination investigation
• Requesting time off for a disability or serious medical condition under FMLA
• Requesting a religious accommodation
• Threatening to file an administrative complaint with the EEOC
• Rebuffing an act of sexual harassment
• Making a complaint to OSHA about unsafe work practices
• Complaining about discrimination
• Questioning whether actions are being taken due to an employee's age
• Exercising one's rights during pregnancy to have maternity leave
• Making a complaint of sexual harassment
• Demanding valid claims of sexual harassment be investigated

Retaliation claims generally require the employee to have a reasonable, good faith belief they are complaining about something unlawful, or exercising statutory rights they actually have. Outlandish, defamatory complaints of discrimination made to preserve one's job do not protect somebody from retaliation. A complaint to OSHA the employer is engaging in unsafe work practices because they do not have paper cups, but have hard plastic cups is not the type of complaint a court will want to consider a good faith complaint.

Retaliation claims generally also require some amount of opposition. Merely mentioning something in passing, a supervisor did not hear, is not likely to be real opposition to protect against employment retaliation. Firmly stating one will not dump chemicals into the Back Bay and backing that up with a terse letter to management does sound like reasonable opposition to illegal OSHA violations. In the real world of employment retaliation lawsuits, an employment lawyer is not likely to take a case in which the stated opposition is weak, nobody cared, and the acts complained about were not even a true violation of a statute with an anti-retaliation provision.

Oppositions that go overboard are also not well met. Violent picketing, efforts to hamper a company's business, neglect of work duties, disrupting the office, and distributing confidential information about the employer was held not to constitute reasonable opposition.

If you believe you were retaliated against for exercising a legal right, please contact our office to speak to an experienced Boston labor lawyer.