ohio retaliation law

What Is Workplace Retaliation?

workplace retaliation
workplace retaliation

It is illegal for an employer to take an adverse employment action against an employee because that employee engaged in a protected activity. Let’s break it down a little. The above sentence has three parts: (1) “adverse employment action,” (2) “protected activity,” and (3) “because of.” Let's look further at what each of these mean to the courts and how they might impact your case.

Adverse Employment Action

This means that something bad happens to you at work. The most obvious adverse employment action is being fired or laid off. But adverse employment action is not limited to termination. Other actions may be adverse employment. For example, harassment, suspensions, demotions, reductions in compensation and marginalization may be adverse employment actions. Bottom line is that an “adverse employment action” is something bad that happens to you at work.

Protected Activity

Protected activity is activity aimed at battling discrimination in the workplace. This includes internal complaints, filing charges, testifying, or otherwise expressing your opposition to what you believe is discrimination in the workplace. If you do something to address discrimination in the workplace, it is probably protected activity. (If you bring attention to issues other than discrimination, you may be a whistleblower.)

Because Of

This is the tricky one. The adverse employment action must be “because of” the protected activity. If your employer fires you and it has nothing to do with your protected activity, that is perfectly legal. Because there is almost never “smoking gun” evidence, courts tend to look at circumstantial evidence like timing and different treatment before/after the protected activity. The “because of” element is the lynch-pin of all retaliation cases.

If you are concerned about unlawful workplace retaliation, speak to an employment attorney. Most, including this firm offer free initial consultations. Contact us to learn more.

Retaliation Claims Upheld in Supreme Court

Title VII of the Civil Rights Act of 1964 was put in place to protect employees from discrimination based on national origin, religion, race, color, and sex; it also protects employees from retaliatory actions by their employer for any Title VII claims the employee may make against their employer. Over the years, courts have had varying opinions on what proof was necessary to support a retaliation claim by an employee. In the case of retaliation claims, some courts feel the plaintiff need only prove that the retaliatory action was a ‘motivating factor’ in the opposed action, where other courts feel that the plaintiff should prove the retaliatory action was the ‘but-for’ cause of the opposed action. In the case of Nassar v. University of Texas Southwestern Medical Center, the US Supreme Court reinforced that retaliation claims are subject to ‘but-for’ causation.

Nassar v. University of Texas Southwestern Medical Center

The retaliation for Nassar begins at the University of Texas Southwestern Medical Center where Dr. Nassar served as a university faculty member. Dr. Nassar also served as a Parkland Memorial Hospital staff physician through an agreement between the school and hospital that university faculty members would fill vacant staff positions within the hospital. Dr. Nassar, of Middle Eastern descent, felt that his supervisor at the university, Dr. Levine, showed bias secondary to his ethnicity and religion and presented his complaints to Dr. Levine’s supervisor, Dr. Fitz. An arrangement was made where Dr. Nassar could continue to work at the hospital while no longer being a member of the university faculty. At a later date, Dr. Nassar chose to resign, sending a letter to Dr. Fitz and others communicating his reason for leaving, which was secondary to Dr. Levine’s harassment. Dr. Fitz subsequently protested the hospital’s job arrangement with Dr. Nassar and consequently, the hospital position was withdrawn.

Retaliation Claims

In Nassar’s retaliation case, Dr. Nassar claimed two Title VII violations: 1)Dr. Nassar claimed that his supervisor’s religiously- and racially-motivated harassment resulted in his constructive discharge from the university (a violation of the antidiscrimination provision); 2)Dr. Nassar alleged retaliatory actions by Dr. Fitz because of his complaints against Dr. Levine (resulting in the loss of his job opportunity).

Using the "But For" Standard of Causation

The jury found in favor of Nassar. The Fifth Circuit affirmed finding that Nassar had demonstrated that retaliation was a "motivating factor" of the university’s actions, which had caused Nassar to lose his employment offer with the hospital. The Supreme Court reversed the Fifth Circuit’s decision and held that Title VII retaliation claims must be proven using a "but for" standard of causation rather than the less burdensome "motivating factor" standard. The Court focused on the language of Title VII’s anti-retaliation provision, which "makes it unlawful for an employer to take adverse employment action ‘because of’ certain criteria."

Contacting Us

If you feel you've been the victim of retaliatory conduct contact our team today. Our New Jersey retaliation lawyers can help you.