NOVA Legal Beat: Employers Skirting Retaliation Rules?
Q. What are some sneaky ways employers usually try to retaliate against employees who have filed discrimination complaints?
A. Most employers know state and federal laws prohibit them from retaliating against employees who complain about unlawful discrimination. Most employers also know that they can be hit with stiff penalties for engaging in such prohibited retaliation. Knowing this, and upset with certain employees for asserting their rights, some employers will still try to tip toe the line between legitimate business practices and unlawful retaliation. Sometimes they cross that line.
Employers who want to retaliate against an employee — and who know that they should not do so — will likely try to avoid any actions that would amount to an unequivocal adverse employment action. Anti-discrimination laws, such as Title VII of the Civil Rights Act and the Age Discrimination in Employment Act, prohibit employers from taking an adverse employment action against an employee protected under these laws.
As the U.S. Court for the District of Maryland noted in Wright v. Kent County Dep’t of Soc. Servs. (2014), an adverse employment action “is a discriminatory act that adversely affects the terms, conditions, or benefits of a plaintiff’s employment.” Adverse employment actions, the court added, typically come in the form of “discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced opportunities for promotion.”
Employers who want to sneakily punish an employee who has asserted his or her rights under Title VII will probably avoid any of these obvious adverse employment actions, which are black-and-white issues. For example, either an employee was fired or he or she was not. Instead, employers may pursue employment actions in the gray area.
For instance, the employer may try to isolate the employee by moving his or her desk or exclude him or her from certain work-related discussions. It is usually much easier for an employer to provide a legitimate reason for taking these employment actions than more severe employment actions, such as termination.
Unfortunately, as the court noted in Wright, “Title VII does not remedy everything that makes an employee unhappy.” Employees who have been ostracized because of their protected activities must show that the employer’s attempts to isolate them did adversely affect the terms, conditions, or benefits of their employment. Employees in such predicaments should immediately contact an experienced employment law attorney who can prepare for them a retaliation lawsuit.
Mathew B. Tully. Esq. is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com.