OCALA BASED EMPLOYMENT RETALIATION ATTORNEYS SERVING CENTRAL FLORIDA
Unlawful retaliation occurs when an employer subjects an employee to an adverse employment action in retaliation for having engaged in statutorily protected activity under an employment discrimination law. Florida and federal employment discrimination laws contain anti-retaliation provisions because their enforcement depends on the willingness of employees to oppose discriminatory employment practices by employers without fear of retaliation. As explained by the U.S. Supreme Court in Crawford v. Metropolitan Gov. of Nashville & Davidson County, 555 U.S. 217 (2009), “fear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.” Having represented employees victimized by retaliation for more than 15 years, our Central Florida retaliation attorneys are committed to protecting and vindicating the rights of employees who are punished for voicing their opposition to discrimination in the workplace.
Employment Discrimination Laws Protecting Against Retaliation
The federal employment discrimination laws which contain anti-retaliation provisions making it unlawful for employers to punish employees for having engaged in statutorily protected activity include:
* Title VII of the Civil Rights Act of 1964 (Title VII), which protects employees from discrimination on the basis of race, color, national origin, sex, and religion.
* The Pregnancy Discrimination Act (PDA), which protects employees against discrimination on the basis of pregnancy.
* The Americans With Disabilities Act (ADA), which protects employees from discrimination on the basis of disability.
* The Age Discrimination in Employment Act (ADEA), which protects employees against discrimination on the basis of age.
* The Equal Pay Act (EPA), which protects employees from discrimination on the basis of sex with respect to compensation.
The Florida Civil Rights Act (FCRA) is the Florida employment discrimination law which contains anti-retaliation provisions making it unlawful for employers to punish employees for having engaged in statutorily protected activity. The FCRA protects employees against discrimination on the basis of race, color, national origin, sex, pregnancy, religion, disability, age, and marital status.
Retaliation Under Whistleblower & Employment Discrimination Laws
As discussed more fully in our Whistleblower Practice Area, whistleblowers are protected against retaliation by federal and Florida law. A whistleblower is an employee who reports, objects to, or refuses to participate in an unlawful act by his or her employer. The two whistleblower laws under Florida law are the Public Sector Whistleblower Act and the Private Sector Whistleblower Act. The purpose of the federal and Florida whistleblower laws is to encourage employees to report, object to, or refuse to assist employers who violate the law by protecting them from retaliation for having done so.
Although employees who oppose an employer’s discriminatory employment practices are engaging in a whistleblower type activity, the federal and Florida employment discrimination laws are the primary legal basis for their protection against retaliation. However, because employees who oppose an employer’s discriminatory employment practices are engaging in a whistleblower type activity, employees who engage in such statutorily protected activity potentially also have a cause of action under the Public Whistleblower Act or the Private Whistleblower Act.
Retaliation By Past, Present & Prospective Employers
The federal and Florida employment discrimination laws protect employees from retaliation by any past, present, or prospective employer for having engaged in statutorily protected activity. This means that an employee is not simply protected against retaliation by his or her present employer for opposing the unlawful employment practices of the present employer. Rather, the employee is also protected against retaliation from a prospective employer for having opposed the unlawful employment practices of his or her present employer. For example, a prospective employer cannot refuse to hire an individual because it is aware that the individual complained about the discriminatory employment practices of a past employer. This also means that an employee is not merely protected against retaliation by his or her present employer for participating in employment discrimination proceedings involving the preset employer. For example, the U.S. Sixth Circuit of Appeals held in Christopher v. Stouder Mem’l Hosp., 936 F.2d 870 (6th Cir. 1991) that a prospective employer’s frequent references to the employee’s sex discrimination lawsuit against a prior employer warranted an inference that the prospective employer’s failure to hire her was retaliatory. This further means that an employee is protected against retaliation from a past employer for having engaged in statutorily protected activity when employed by that employer. For example, in Robinson v. Shell Oil Co., 519 U.S. 337 (1997), the U.S. Supreme Court held that a former employee could bring a Title VII retaliation claim against his former employer for retaliation occurring after the employment relationship had ended.
What Constitutes An Employee’s Statutorily Protected Activity
The anti-retaliation provisions in the federal and Florida employment discrimination laws contain two clauses commonly referred to as the “opposition clause” and the “participation clause” which constitute an employee’s statutorily protected activity. The opposition clause covers an employee’s opposition to any employment practice of an employer which is an unlawful employment practice under the employment discrimination laws, including Title VII, the PDA, the ADA, the ADEA, the EPA, or the FCRA. The participation clause covers an employee’s participation in any investigation, proceeding, or hearing under the employment discrimination laws, including Title VII, the PDA, the ADA, the ADEA, the EPA, or the FCRA.
An Employee’s Statutorily Protected Opposition Activity
The anti-retaliation provisions of the federal and Florida employment discrimination laws make it unlawful for an employer to retaliate against an employee for opposing any practice made unlawful under the employment discrimination statutes. The opposition clause provides protection from retaliation for a broad range of activities. By way of example, an employee engages in statutorily protected opposition activity when the employee:
* Makes a complaint to a supervisory or management level employee about alleged discrimination in the workplace against the employee or another employee For example, an employee complains to a supervisor that she was passed over for promotion because of her race or was treated less favorably than younger employees. Likewise, an employee complains to a manager about incidents of mistreatment of African-American employees in comparison to white employees.
* Makes a complaint to a supervisory or management level employee about alleged harassment in the workplace against the employee or another employee. For example, an employee complains to a supervisor that she is being sexually harassed at work. As explained by the U.S. Sixth Circuit Court of Appeals in Wasek v. Arror Energy Servs., Inc., 682 F.3d 463 (6th Cir. 2012), “complaining about alleged sexual harassment to company management is classic opposition activity.” Likewise, an employee complains to a manager that another employee is being sexually harassed at work. Similarly, the employee complains to a supervisor about racially offensive harassing conduct towards other employees in the workplace.
* Tells a supervisor to stop sexually harassing him or her. For example, the court in EEOC v. IPS Indus., Inc., 899 F.Supp.2d 507 (N.D. Miss. 2012) held that an employee’s telling her supervisor not to touch her again and informing him that she would only return to work if he stopped touching her constituted statutorily protected activity.
* Refuses to obey an order because the employee believes that the order is an unlawful employment practice. For example, the U.S. Eight Circuit Court of Appeals held in EEOC v. HBE Corp., 135 F.3d 543 (8th Cir. 1998) that a personnel director’s refusal to fire an employee because of his race was statutorily protected activity because he was opposing the employer’s discriminatory policy of excluding African-Americans from important positions.
* Requests a reasonable accommodation of a disability.
* Files an assault and battery police report relating to alleged sexually harassing behavior the workplace.
Do Not Have To Prove The Conduct Was Unlawful Discrimination
In order for an employee to be considered to have engaged statutorily protected opposition activity, the employee does not have to prove that the employment practice opposed was in fact unlawful discrimination. Rather, an employee is deemed to have engaged in statutorily protected opposition activity so long as the employee had a good faith, reasonable belief that the employment practice was unlawful discrimination. The good faith belief requirement means the employee sincerely believed that the employment practice was unlawful discrimination. The objective reasonableness of an employee’s good faith belief is evaluated in light of the totality of the circumstances and measured against substantive employment discrimination law.
The good faith, reasonable belief standard for determining whether an employee engaged in statutorily protected activity means that the protection against retaliation is not lost if the employee was wrong about whether the employment practice opposed was actually unlawful discrimination. In other words, the employee does not have to be right about whether the conduct opposed was actually unlawful discrimination. Instead, the employee simply must have a good faith, reasonable belief that the conduct opposed was unlawful discrimination. Because there is a range of conduct falling short of an actual unlawful employment practice that an employee could reasonably believe was unlawful discrimination, the opposition clause provides exceptionally broad protection for an employee who opposes an employer’s employment practices.
An Employee’s Statutorily Protected Participation Activity
The anti-retaliation provisions of the federal and Florida employment discrimination laws make it unlawful for an employer to retaliate against an employee for participating in an investigation, proceeding, or hearing under the employment discrimination statutes. The participation clause provides protection from retaliation for a broad range of activities under the employment discrimination laws. By way of example, an employee engages in statutorily protected participation activity when the employee:
* Files an administrative charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC), Florida Commission on Human Relations (FCHR), or other fair employment practices agency.
* Informs the employer of his or her intention to file an administrative charge of discrimination with the EEOC, FCHR, or other fair employment practice agency, even if the employee later changes his or her mind.
* Provides information, including a signed written statement, to the EEOC, FCHR, or other fair employment practices agency regarding an administrative charge of discrimination filed by another employee.
* Brings a lawsuit alleging discrimination or harassment against the employer.
* Testifies as a voluntary or involuntary witness in a discrimination or harassment lawsuit filed by another employee.
* Refuses to sign an inaccurate affidavit on behalf of an employer in a discrimination or harassment lawsuit.
* Refuses to provide testimony supportive of an employer in a discrimination or harassment lawsuit.
* Participates in an employer’s internal investigation into the allegations of discrimination or harassment in response to the filing of an administrative charge of discrimination by the employee or another employee with the EEOC, FCHR, or other fair employment practices agency.
What Is An Adverse Employment Action
The federal and Florida employment discrimination laws do not prohibit all retaliatory actions against employees who engage in statutorily protected activity. Instead, the federal and Florida employment discrimination statutes make illegal only those retaliatory actions that constitute an adverse employment action. In Burlington N. & Santa Fe R.R. Co. v. White, 548 U.S. 53 (2006), the U.S. Supreme Court defined an adverse employment action in the retaliation context as an act that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” In other words, if employer’s action is reasonably likely to deter an employee from engaging in statutorily protected activity, then the action is an adverse employment action. The White Court determined that “petty slights, minor annoyances, and a simply lack of good manners” will not normally constitute an adverse employment action for purposes of a retaliation claim. Instead, the White Court explained, an employee must show “material adversity” because “it is important to separate significant from trivial harms.” In White, the Supreme Court held that transferring an employee to a harder, dirtier job with the same pay grade and job category and suspending her without pay for 37 days even though the lost pay was later reimbursed, were both adverse employment actions.
In applying the Supreme Court’s definition of an adverse employment action, courts have determined that an adverse employment action is one that materially affects the compensation, terms, conditions, or privileges of an employee’s employment. Among the employment decisions that courts almost uniformly hold constitute an adverse employment action include:
* Failure to hire.
* Demotion evidenced by a decrease in pay.
* Failure to promote.
* Reduction in pay.
* Denial of job benefits.
* Suspension without pay.
* Layoff.
* Termination.
Courts have also consistently recognized that an adverse employment action exists when an employer’s retaliatory action negatively affects an employee’s compensation. For example, the U.S. Ninth Circuit Court of Appeals determined in Little v. Windermere Relocation, Inc., 301 F.3d 958 (9th Cir. 2002) that a reduction the employee’s base pay was an adverse employment action even though with commission and bonuses it might have equaled the same net pay. Similarly, an action that significantly harms an employee’s future employment prospects may be considered an adverse employment action. For example, the U.S. Tenth Circuit Court of Appeals held in Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996) that the employer’s filing of false criminal charges against en employee constituted an adverse employment action because of its potential to harm future employment prospects.
Depending on the circumstances of a particular case, actions that do not result in economic harm to an employee can rise to the level of an adverse employment action. Examples of actions that may constitute an adverse employment action include:
* Disciplinary action.
* An undeserved negative performance evaluation.
* An increased work load.
* Scrutinizing work performance or attendance more closely than that of other employees.
* Eliminating supervisory responsibilities.
* Transfer to a different position.
* A denial of training.
Employment Law Blog
We offer more information about retaliation in our employment law blog.
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If you are experiencing or have experienced retaliation at work, please contact us for a free initial consultation with our Central Florida employment retaliation attorneys. You will receive personalized and individual attention from our employment law attorneys. We have substantial experience litigating employment retaliation cases in state and federal court. Our employee rights law firm takes employment retaliation cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Based in Ocala, Florida and representing employees throughout Central Florida, we are ready to take your retaliation case and fight for your employee rights.