Based on an often misunderstood and overlooked legal concept, a Hamptons real estate firm was recently ordered to pay both back pay and $200,000 in punitive damages for its retaliation against a former “at-will” agent who complained about racial discrimination and was thereafter terminated. (See, https://www.eeoc.gov/facts-about-retaliation).
Notably, the award was not related to any discrimination or harassment itself, but the termination effectuated two weeks after the claimant complained that she was not provided with the same mentoring as her non-minority counterparts. Simply, retaliation does not require direct discrimination or harassment, but is equally important for employers to understand.
State and federal law protects employees who engage in “protected activities” such as 1) filing or being a witness in an EEOC (Equal Employment Opportunity Commission) or NYSDHR (NYS Division of Human Rights) charge, complaint, investigation, or civil lawsuit; 2) communicating with a supervisor or manager about employment discrimination, including harassment; 3) answering questions during an investigation of alleged harassment; 4) refusing to follow orders that would result in discrimination; 5) resisting sexual advances, or intervening to protect others; 6) requesting accommodation of a disability or for a religious practice; or 7) asking managers or co-workers about salary information to uncover potentially discriminatory wages. Any “retaliatory action” taken, if causally connected to the protected activity, exposes the employer to a claim. Such an action could include: 1) denial of promotion; 2) non-selection/refusal to hire; 3) denial of job benefits; 4) demotion; 5) suspension; 6) discharge; 7) threats; 8) reprimands; 9) negative evaluations; 10) harassment; or 11) other adverse treatment that is likely to deter reasonable people from pursuing their rights.
Uninformed employers often believe they are free to terminate an “at-will” employee for any non-discriminatory reason, sometimes exposing themselves to a retaliation claim. Instead, employers should implement policies specific to preventing retaliation, and take all necessary steps to address the “protected activities” and protected complaints of workers.
Businesses encounter many challenges related to employment matters. Our attorneys can provide expert guidance on the most current employment policies and insights for business owners to be well-informed. Contact our attorneys for guidance today.