EMPLOYEES WHO COMPLAIN OF DISCRIMINATION ARE ENTITLED TO PROTECTION

     Under federal and state employment laws, it is unlawful employment practice for an employer to retaliate against an employee for opposing any discriminatory practice by the employer or for filing a complaint, testifying or participating in such proceedings.

     Protected Activity
     The employee action that is subject of the employer retaliation must be a “protected activity.” The employee must have 1) opposed employer actions made unlawful by law or 2) participated in a lawful activity against the employer such as making a charge, testifying or participating in proceedings or investigations. The employee’s activity may not be protected if it is disruptive or detrimental to the employer’s legitimate business interests. The following acts have been considered by the courts as protected activity:

       1. Formal or informal complaint to a supervisor regarding unlawful discrimination.
       2. Threatening to file a charge of discrimination.
       3. Defending oneself in investigation.
       4. Filing claim for non-payment of overtime with state labor agency.
       5. Reporting criminal activities to law enforcement agencies.

     Retaliation is unlawful and the law allows the employee to pursue remedies against employer, including the right to recover damages and attorneys’ fees or to seek injunction to stop the employer’s retaliatory conduct.

     Adverse Employer Actions
     In claiming “adverse employment action”, an employee must prove that he or she suffered some unfavorable action by the employer occurring after or about the same time as the employee’s exercise of the protected right. Adverse action includes the following:

       1) discharge or termination
       2) suspension
       3) demotion
       4) transfer to a more difficult job with the same pay, and
       5) refusal to hire or promote

     In a recent discrimination case, the US Supreme Court unanimously found the existence of retaliation in the less severe action of “job transfer” and upheld a jury verdict for $43,500 in favor of a female forklift operator for Burlington Northern and Santa Fe Railway Co.

     The employee claimed that the employer retaliated after she complained of sexual harassment by shifting her to a less appealing job. She had filed a complaint of sexual harassment against a supervisor for making off-color comments and sexist remarks such as a woman does not belong to that job. After the complaint was filed, the supervisor was suspended for 10 days. However, another supervisor reassigned the employee from the forklift job to a more physically demanding work on the railroad track at the same rate of pay. Later, after a dispute with another supervisor, she was suspended without pay for 37 days.

     In appealing the jury verdict, the employer Burlington argued that lower courts were too willing to allow discrimination claims for minor shifts in job status. It contends that retaliation claims should be restricted to major actions, such as filing or demotion. The Court disagreed and stated that almost every job category involves some responsibilities and duties that are less desirable than other. Common sense suggest that one good way to discourage an employee from complaining of discrimination would be to insist that she spend more time working on difficult duties.

     Discrimination is unlawful. Retaliating against an employee who exposes discrimination is equally unlawful. An employee who finds himself or herself to be the target of discrimination or retaliation has rights protected under the law.