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Retaliation Claims
in the Workplace
A growing threat for employers
May 20, 2015
What is Unlawful Retaliation?
Life Alert Slapped With
®
$7M Bias, Retaliation Suit
A former employee… hit the company with a $7
million suit on Wednesday in New York state
court claiming he was fired due to his age and
his complaints to supervisors about the
“cauldron of illegal work practices and sexual
harassment” at the workplace.
Retaliation is prohibited so that people can
enjoy full access to the protection of
the laws at work
Retaliation by an employer against its
employee is a statutory tort – an intentional
wrongful act proscribed by law that causes
injury to the employee. The employee can
recover money damages, attorney’s fees,
and court costs against the employer if he
or she prevails in court.
If an employee engages in some legally
protected workplace activity (e.g., like
blowing a whistle or filing a complaint) and
then the employee is fired, or his or her job
is changed in some important, negative way
that the employee and other reasonable
people take as a warning or a disincentive
to complain, it’s retaliation.
What can constitute retaliation?
•  Job reassignment or transfer to a less desirable
position, work location, or shift
•  Reduction in pay or benefits, or other status demotion
•  Refusal to promote
•  Job suspension with or without pay
•  Termination of employment
•  Refusal to hire or re-hire
•  Can apply to ex-employees, spouses, relatives, and
friends
There is no law that states an employer must
make all workplace decisions fairly or
correctly, or even behave in a professional or
polite manner.
Trivial unpleasant conduct or minor workplace
inconveniences are not retaliation
•  A supervisor's refusal to invite an employee to lunch is
normally trivial and a non-actionable petty workplace
slight
•  An employer's failure to investigate an employee's
complaint cannot be considered retaliation against the
employee
•  An employer's failure to grant an employee
discretionary time-off awards is not retaliation
•  An employer exercising control to hand out legitimate
discipline to a misbehaving employee is not retaliation
The United States Equal Employment
Opportunity Commission (EEOC), as
well as employees,
can file suits for retaliation
Retaliation-Based Charges Filed with the EEOC
(17-year statistical record)
Retaliation-Based Charges Filed with the EEOC
(17-year statistical record)
1997 -- 18,198 (23% of all charges) (2,519 in Florida)
No reasonable cause found: 52.2%*
2014 -- 37,955 (43% of all charges**) (3,261 in Florida)
No reasonable cause found: 62.9%*
National increase: 109 %
Florida increase:
29 %
Retaliation-Based Charges Filed with the EEOC
(17-year statistical record)
In FY 2014 (Oct. 1, 2013, to Sept. 30, 2014) the
percentage of EEOC charges alleging retaliation reached
its highest amount ever, while the percentage of charges
alleging race discrimination, the second most common
allegation, remained steady at approximately 35 percent
*Even if the EEOC finds no reasonable cause the
employee can still file suit
** Highest percentage of all charge categories
The top states for retaliation charges
in 2014
Texas
3,708
Florida
3,261
California
3,088
Principal Federal Laws Prohibiting
Workplace Retaliation
•  Title VII of the 1964 Civil Rights Act (including the
Pregnancy Discrimination Act)
•  Section 1981 of the Civil Rights Act of 1866
•  The Americans with Disabilities Act (ADA)
•  The Age Discrimination in Employment Act (ADEA)
•  The Fair Labor Standards Act (FLSA) and The Equal Pay
Act (EPA)
•  The Genetic Information Nondiscrimination Act (GINA)
•  The Family and Medical Leave Act (FMLA)
Principal Federal Laws Prohibiting
Workplace Retaliation
• 
• 
• 
• 
National Labor Relations Act (NLRA)
The False Claims Act
Employee Retirement Income Security Act (ERISA)
Jury service statute 28 U.S.C. § 1875 (entitled “Protection of
jurors’ employment”)
•  USERRA (the Uniformed Services Employment and
Reemployment Rights Act of 1994)
•  Numerous federal "Whistleblower" laws, such as the SOX,
the Consumer Product Safety Act, the Clean Air Act, OSHA,
the Atomic Energy Act (over 90 federal statutes and
regulations protect employees who report wrongdoing)
Accused Of Firing Salesman
For Reporting Kickbacks
A former Covidien LLP sales rep says he
was fired as payback for telling the FBI that
the health care products company gave a
physician $9,000 in kickbacks to keep his
business, according to a whistleblower suit
removed to California federal court on
Thursday.
Elements of a typical claim of retaliation
under federal statutes
“Opposi'on” Claims are brought by individuals who claim they were
retaliated against because they opposed an unlawful
practice. An employee does not need to file a formal
complaint to receive this type of protection.
“Par'cipa'on” Claims are brought by individuals claiming retaliation for
filing a charge of discrimination, testifying, assisting or
participating in any manner in an investigation, proceeding
or hearing under an applicable statute.
Elements of a typical claim of retaliation
under federal statutes
In both types of claims, the plaintiff must prove
that he or she suffered an "adverse employment
action" because of his or her protected activity.
Under the U.S. Supreme Court's 2013 decision in
University of Texas v. Nassar, the plaintiff must
prove that retaliation was the "but for" cause of
the adverse employment decision.
Does the underlying complaint in an
opposition case have to be legally valid?
The employee does not need to prove that the underlying
claim giving rise to the retaliation claim is valid.
However, in extreme cases the nature of the acts complained
of may be relevant to a court’s evaluation of whether the
employee asserting the retaliation claim actually engaged in
protected conduct. Thus, in Clark County School District v.
Breeden, 532 U.S. 268 (2001), the U.S. Supreme Court
upheld the dismissal of a retaliation claim where "no one
could reasonably believe that the incident recounted [by the
plaintiff] violated Title VII."
Does the underlying complaint in an
opposition case have to be legally valid?
The report for one of the applicants
disclosed that the applicant had once
commented to a co-worker, “I hear
making love to you is like making
love to the Grand Canyon.” ... At the
meeting respondent’s supervisor
read the comment aloud, looked at
respondent and stated, “I don’t know
what that means.” ... The other
employee then said, “Well, I’ll tell you
later,” and both men chuckled.
Retaliation under the Family and
Medical Leave Act (FMLA)
Under section 2615(a) of the FMLA, an employee may bring a
retaliation claim in court, asserting that the employer
discriminated against or her because of having engaged in an
activity protected by the Act. The employee must prove that
(1) she engaged in a statutorily protected activity; (2) she
suffered an adverse employment decision; and (3) the
decision was casually related to a protected activity. These
claims often come up in the context of maternity leave. Even
when an employee requests maternity leave before being
eligible to take it under the FMLA the request is protected
activity for retaliation purposes.
Principal Florida state laws prohibiting
workplace retaliation
Jury Duty Employees are entitled to take unpaid leave for jury service in a
grand jury or trial jury. Employers who threaten or fire an employee
for jury service are subject to criminal penalties and lawsuits for
compensatory damages, punitive damages, and reasonable attorney
fees and court costs under Fla. Stat. §40.271.
Workers’ Compensa'on In Florida, an employer is not permitted to discharge, threaten to
discharge, intimidate, or coerce any employee by reason of such
employee’s valid claim for compensation or attempt to claim
compensation under the Workers’ Compensation Law. Fla. Stat. §
440.205 allows retaliation lawsuits.
Principal Florida state laws prohibiting
workplace retaliation
The Florida Civil Rights Act Protects from retaliation all employees who have opposed an
unlawful employment practice, or who have made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing.
Whistleblowers The Florida private and public sector Whistleblower Acts protect
private sector and government employees, respectively, from
retaliation as a result of having exposed employer wrongdoing to
appropriate agencies.
Workers’ Compensation Retaliation
Pursuant to section 440.205, Florida Statutes, entitled, "Coercion of
Employees," " No employer shall discharge, threaten to discharge,
intimidate, or coerce any employee by reason of such employee’s
valid claim for compensation or attempt to claim compensation
under the Workers’ Compensation Law.”
This statute, which the Legislature enacted in 1979, creates a
statutory cause of action for a wrongful discharge in retaliation for
an employee's pursuit of -- filing or threatening to file -- a workers'
compensation claim. Thus, an employer who violates section
440.205 commits an intentional tort and becomes liable for lost
wages and compensatory and punitive damages for emotional
distress.
Workers’ Compensation Retaliation
In the 2004 case of Bruner v. GC-GW Inc., the Florida First District
Court of Appeal stated: "We find that section 440.205 is not only
intended to punish employers who discharge an employee for
having filed a workers' compensation claim but is also intended to
insure that employees do not have to fear reprisal from their
employers when they file a workers' compensation claim."
Retaliation claims are allowed even if no employment termination
took place. The aggrieved employee can assert his claim in court
without first having to proceed administratively before a state
agency.
The Florida Public Employee
Whistleblower’s Act
Section 112.3187, et seq., Florida Statutes, prohibits:
•  Taking retaliatory action against any state employee who
reports to an appropriate agency violations of law on
the part of a public employer or independent contractor
that create a substantial and specific danger to the
public’s health, safety, or welfare
•  Taking retaliatory action against any person who
discloses information to an appropriate agency
alleging improper use of governmental office, gross
waste of funds, or any other abuse or gross neglect of
duty on the part of an agency, public officer, or employee
The Florida Private Sector Whistleblower Act
Section 448.102, Florida Statutes, provides that an employer may not take any
retaliatory personnel action against an employee because the employee has:
• 
(1) Disclosed, or threatened to disclose, to any appropriate governmental
agency, under oath, in writing, an activity, policy, or practice of the
employer that is in violation of a law, rule, or regulation. However, this
subsection does not apply unless the employee has, in writing, brought the
activity, policy, or practice to the attention of a supervisor or the employer
and has afforded the employer a reasonable opportunity to correct the
activity, policy, or practice.
• 
(2) Provided information to, or testified before, any appropriate
governmental agency, person, or entity conducting an investigation,
hearing, or inquiry into an alleged violation of a law, rule, or regulation by
the employer.
• 
(3) Objected to, or refused to participate in, any activity, policy, or practice
of the employer which is in violation of a law, rule, or regulation.
What should employers do to prevent retaliation
claims, or to be in a better defensive position?
a.  Establish a specific policy against retaliation in the workplace -- and enforce it.
b.  Create a working environment where employees feel that they can freely and
openly alert management to potential problems and participate in
investigations without fear of suffering adverse consequences for doing so.
c.  Communicate with every complaining employee that you are taking his or her
complaint seriously.
d.  Keep all internal and external complaints confidential (the fewer people that
know about it the better).
e.  Document everything you do to prevent retaliation. Send the complaining
employee a letter confirming what you have told him or her about retaliation.
f.  If you have to discipline or terminate any employee who has filed a complaint,
make sure that you have a clear and detailed written record that can prove
that retaliation was not the reason for the adverse employment action.
Angel Castillo, Jr.
DLD Lawyers
150 Alhambra Circle, PH
Coral Gables, Florida 33134-4505
Email: acastillo@dldlawyers.com
Tel. (305) 443-4850