|
|
|
Employment discrimination
Hiring and employment
|
|
Attorney directory
|
|
|
|
|
Employers’ Retaliation Techniques for Discrimination Claims
Discrimination workplace cases, discrimination supreme court cases,
gender discrimination cases
1. Definition of retaliation
Generally, federal laws that deal with protection of employees’ rights
include provisos that inhibit employers from retaliating or getting even
against the employee who the law seeks to protect. However, it is not
easy to prove that the employer is indeed taking steps to get even with
the employee. Look at some of the questions which could determine if you
could file a claim for retaliation.
2. Definition of a protected conduct
All activities which aim to fight or resolve discrimination like filing
a claim against discrimination; giving out a warning of filing a claim
against discrimination, questioning the motives or an action deemed to
be discriminatory and complaining against an apparent discrimination regardless
if it was against another employee or yourself; helping another employee
in fighting discrimination and volunteering to become a witness or give
evidence to an investigating body; non-participation in illegal activities;
refusing to corroborate an employer’s untruthful statement regarding an
emplyoyee filing a discrimination claim fall under protected conduct.
On the other hand, the FMLA provides another type of protected conduct
which is taking a medical leave to take care of yourself or other immediate
members of the family or filing a protest against your employer’s rejection
of your request to take a leave. Making queries regarding company policies
or practices or participaing in plans pertaining to retirement is a protected
conduct under the ERISA or Employee Retirement Income and Security Act.
3. Was there any hostile action taken by your employer?
To be considered illegal, the employer should have tried to get even with
you so that you were financial affected and this has discouraged a sensible
employee from supporting your claim of discrimination or filing his/her
own discrimination charge. Generally, the employer tries to get even with
the employee thru aggravation, demotion, and dismissal, among others.
Recently, through a Supreme Court decision it has been ruled that, a hostile
action is not necessarily committed only within the office prenises but
as long as the action discourages a sensible person from filing a discrimnation
complaint.
4. Was your employer aware of your protected conduct?
You should have some proofs that your employer knows that you are doing
a protected conduct. This means that the individual who has the authority
to decide regarding your fate in the company whether orally or through
written communication is aware of what you plan to do. Informing the management
of your intention is the best way to be assured that your employer is
aware of what you are up to. The information can also come from your co-workers
or supervisors or the Equal Employment Opportunity Commission may also
advise another employee of the company that you are engaged in a protected
conduct. Unless you are able to prove that your company is aware that
you are engaged in a protected conduct, it will be impossible to prove
that there is a case of retaliation.
5. Can you present proofs that your protected conduct caused your
dismissal?
The hardest task to be hurdled in a retaliation claim is proving that
your protected conduct was the leading cause of your termination. One
aspect could be the timing – that is if you were fired right after you
filed a discrimination case against your employer that can be a point
for your case. Another way is if protected employees were dismissed because
of an assumed wrongdoing while other employees which were also guilty
of the same wrongdoing were not sanctioned. Whaever proof you can show
which will establish that your termination was an offshoot of your protected
activity will be worth presenting.
6. How do you deal with your employer’s rebuttal?
Disprove your employer’s presented reasons for your dismisal by giving
the same evidence to prove that the reason is a cover-up, similar in a
discrimination case. For instance, you can show that the employer’s reason
is flawed and false, or that the reason was not strong enough to become
the basis of dismissal, that it has no credibility and aims to becloud
the jury’s view from the real issue. Bear in mind that the burden of proof
is with you – to prove that the motivation for dismissal is to get even
with you, which is illegal. It is not easy, but hardly impossible. Indirect
evidence can also be material in establishng your case.
7. Who will impose the penalty?
The (EEOC) or Equal Employment Opportunity Commission is the agency of
the federal government which is tasked with looking into retaliation charges
due to protected conduct for companies that have at least 20 employees.
Other states have their own version of the EEOC which is tasked with the
implementation of the laws regarding retaliation.
9. What will you get if you win your case against retaliation?
Remedies will include:
• Back pay of wages
• Reinstatement
• Promotion
• Payment as penalty of the employer
• Payment for emotional and physical damages
• Being hired
• Front pay upon hiring or reinstatement
• Other measures to restore the individual’s well-being
You could also get other payments to settle fees of:
• Lawyers
• Court
• Expert Witness
Employers are obligated to put up a notice that can be read by all employees
regarding the measures that are being taken to address specific violations
on discriminatin claims and letting them know as well of their rights
as stipulated by the EEOC with an assurance that their protected conduct
will not be meted with retaliation. The notices must be within everybody’s
reach incuding those who have disabilties, such as those with visual impairment
so they will not be prevented from reading the advice.
If top management is not the source of the discriminatory action, then
the employer is required to take steps to correct or prevent such actions
from becoming a normal occurrence in the company. The person responsible
for such action should be sactioned and warned to discontinue his/her
illegal activity. State laws are known to allow bigger or different remedies
compared to federal laws.
|
