In order to empower employees to assert their legal rights without fear of reprisal from their employers, federal and state law offers employees a cause of action against workplace retaliation. Workplace retaliation occurs when an employer discharges, disciplines, threatens, or otherwise discriminates against or penalizes employees because they report a violation of any federal or state law or rule, request an investigation of the employer, or refuse an illegal order. Minn. Stat. 181.932. Here are some more examples of employee assertion of rights:
- speaking up about unlawful conduct done to them personally
- opposing or reporting discrimination or sexual harassment on behalf of a co-worker
- opposing employer’s failure to pay overtime
- reporting employer for violation of state or federal law
- reporting employer for OSHA or health violations
Along with discharge, discipline or threats, there are many other different types of workplace retaliation, including:
- Unjustified negative write-ups or evaluations
- Increased harassment
- Dead ending (no advancement)
- Unwanted transfer
- Loss of career opportunities
There are a handful of Minnesota statutes that bar workplace retaliation, including Minnesota Statute 181.932, the “whistleblower statute”. The Minnesota Human Rights Act (“MHRA”) also prohibits retaliation against claimants. Minn. Stat. 363A.15. The MHRA defines retaliation as “any form of intimidation, retaliation or harassment . . . ” Id.
Minnesota state court jurisprudence has not shown a strong employee-friendly policy in workplace retaliation claims. In Kidwell v. Sybaratic, Inc., 784 N.W.2d 220 (Minn. 2010), the Minnesota Supreme Court held that the whistleblower statute does not protect those employees who report suspected violations of law in the course of fulfilling the normal responsibilities of their position. In Gagliardi v. Ortho-Midwest, Inc., 733 N.W.2d 171 (Minn. App. 2007), a woman was fired because her boyfriend had made a sexual harassment complaint on her behalf. The Minnesota Court of Appeals held that the Minnesota Human Rights Act (“MHRA”) does not prohibit an employer from retaliating against an employee for the actions of a third party, because the MHRA protects only the specific person who made the complaint. Id. This decision stands in contrast to federal law, which protects third party “whistleblowers.” See Thompson v. North American Stainless, LP, 131 S.Ct. 863 (2011).
Title VII of the Federal Civil Rights Act, 42 U.S.C. 2000e-2(a), contains anti-retaliation provisions which establish a cause of action for any employee who suffers retaliation from their employer for asserting their legal rights. Federal law is developing rapidly in this area. In federal employment law, it is possible to trace the shifting of policy back and forth between favoring employees and favoring employers. Recently, the Supreme court has shown a favor toward employers in workplace-related cases. Michael H. Tanick, Employee Retaliation Claims, Bench & Bar of Minnesota, Nov. 11, 2011. However, federal court policy in retaliation cases has been largely in favor of employees. See Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325 (2011).
The change in federal court jurisprudence began with a 2006 case, Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), in which the Supreme Court held that there is a possible action whenever an employer performs any action that might “dissuade a reasonable worker from making or supporting a charge of discrimination.” This definition requires a very fact-intensive legal analysis, which makes it nearly impossible to dispose of claims in summary judgment.
Making a Claim
The Equal Employment Opportunity Commission (“EEOC”) is the federal agency responsible for enforcing federal discrimination laws. Most employers with at least fifteen employees, as well as most labor unions and employment agencies are covered by EEOC laws. If you think you have been discriminated against, the first step is to file a complaint with your local EEOC office. Their role is to investigate the facts, assess your allegations, and, if they find that discrimination occurred, to prosecute your case. Generally, you must file a charge within 180 calendar days from the date of the alleged discrimination. If there is a state or local agency enforcing your specific type of discrimination, then you have 300 days to file. Since 2006, the EEOC has experienced a large rise in the amount of reprisal claims being filed. Before 2006 the EEOC received less than 23,000 reprisal claims. Now they receive more than 33,000 each year.
The parallel state agency in Minnesota is the Minnesota Department of Human Rights (“MDHR”). The MDHR only takes complaints for violations of the Minnesota Human Rights Act, Minnesota Statute 363A. A charge must be filed with the MDHR within one year of the alleged discriminatory act.
Written by: Lucas Spaeth