Retaliation Against Discrimination Complaints

Employers should be careful to avoid taking adverse employment action against any employee who complains about discrimination or about any other violation of the law involving the workplace. Minnesota law protects such employees by assuring that “blowing the whistle” on illegal acts270 or exercising certain rights will not cost them their jobs or make their working environment difficult. Examples of such protected employees include those who complain about any form of discrimination or OSHA violations, or those who file workers’ compensation claims, ask to see their personnel files, or exercise their right to take parental leave. Reports concerning the employee’s good faith belief of unlawful conduct may be made about any law, not just laws that reflect some important public policy.271 The reports can be made internally to management or externally to some government official. In addition, the Sarbanes-Oxley Act is a federal law that prohibits public companies from retaliating or discriminating against employees who provide information, assist in investigations, file, testify or otherwise participate in proceedings concerning the financial affairs of the company.

The prohibition against retaliation does not mean that an employer may never discipline an employee who complains or exercises certain legal rights. Rather, the discipline may not be a result of the complaint. Adverse action taken after a complaint, particularly where there is no record of disciplinary action before the complaint, will appear to be retaliation.

Employers should alert supervisory personnel of the protected status of these employees so the employees will not be subjected to harassment, demotions, discipline or other forms of retaliation as a result of their complaints or the exercise of their rights.

A decision issued by the U.S. Supreme Court significantly expands the scope of potential retaliation claims and, in doing so, underscores the importance for employers of ensuring they have adequate procedures in place to prevent retaliation against employees who complain of discrimination.272 The Court determined that federal anti-discrimination law is not restricted to harms that are related to employment or occur at the workplace. In a departure from previous rulings, the Court stated that events occurring outside the workplace may support a claim for illegal retaliation. Under this decision, an individual must show that the employer’s action would have been “materially adverse to a reasonable employee or applicant.”273 To satisfy this requirement, a complaining employee must demonstrate that the alleged act of retaliation “could well dissuade a reasonable worker from making or supporting a charge of discrimination.”274

Retaliation is a separate violation under most laws. For example, if an employee complains of sexual harassment and, as a result, is demoted or otherwise subjected to adverse employment action, even if there is no validity to the sexual harassment claim, the employee may have an actionable claim for retaliation.

Employers should also keep in mind that the law protects employees who in good faith allege that they have been the subject of discrimination, harassment, or some other unlawful action. It is illegal to retaliate against such individuals through termination, demotion, or assignment of undesirable job duties on account of their complaints or allegations. The anti-retaliation provisions of federal law also protect a company’s former employees.275 Thus, providing a negative reference or otherwise interfering with former employees’ attempts to find other employment because they previously made allegations of an unlawful employment practice is forbidden.

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