One of the biggest names in American industry is under fire. Complaints of racial discrimination have resulted in a lawsuit against Coca-Cola plants. The Coca-Cola brand is now under fire, with a total of sixteen employees joining together in the claim.
An Isolated Incident?
The accusations are clear, complete, and troubling. The sixteen Hispanic and African American employees claim use of the N-word on the job, other racially derogatory name calling, and preferential work assignments given to white employees while minority employees were forced to do dirty jobs. White workers were permitted overtime earnings, say the plaintiffs, while minorities did not receive the same opportunity. The plaintiffs claim that promotions were purposefully given to white workers in preference over minority workers. Equally troubling to some is that the charges were leveled not against one manufacturing plant, but two. This is not indicative of an isolated incident, but, according to the plaintiffs, a cancerous racial discrimination problem.
Coca-Cola’s Defense
Coca-Cola is firing back, claiming that many of the charges involve incidents that are years old, and resolved. In addition, the company claims several minority employees are defending the company as opposed to the workers who have brought the lawsuit. Coca-Cola further claims that no culture of racial or discriminatory practices exists at the two manufacturing plants in question, which are both based in New York. Finally, Coca-Cola claims diversity is a corporate value, an instilled passion of Coca-Cola associates around the world.
Past Litigation
Coca-Cola has lost racial discrimination cases before. Most notably, the company settled the largest discrimination case in American history in 2000. The accusations were similar: black employees claimed that Coca-Cola denied pay raises, promotions and positive evaluations based on race. The payout was nearly $200 million, a huge blow to a company that stands for American fun. At the time, the corporation avowed commitment to nurturing diversity in its workforce.
A Sound Case, or a Continuing Saga?
Is the latest chapter in Coca-Cola’s storied history of racial litigation a ruse on the part of over a dozen employees, or a legitimate claim against a company that never made good on its decade-ago commitment to ending illegal racial policies? Only the courts can decide.
Are You a Victim?
If you feel you’ve been victimized by discrimination, like the Coca-Cola employees discussed above, you need an attorney that knows racial discrimination law. Call the Law Offices of Valli, Kane & Vagnini now. Take action today to end racial discrimination in the workplace.
What To Do If Being Harassed At Work
Those who suffer sexual harassment in the workplace do not have to tolerate the behavior; there are options. However, people who suffer through sexual harassment in the workplace are often hesitant to report the behavior. They are intimidated by the fear that reporting this degrading and demeaning behavior could have negative consequences. These feared consequences could include termination, damage to prospects of future employment, demotions and negative transfers. These potential negative consequences can be mitigated by empowering the sexually harassed individual to stop the behavior and demand redress for the professional and emotional distress as a result of the illegal behavior.
Sexual Harassment and Employment Law
Sexual harassment falls under the federal employment discrimination laws. In many areas, it not only violates United States federal law, but state and local laws. Employers are obligated to take action to prevent sexual harassment at the workplace. If sexual harassment is reported to the employer, immediate action must be taken to deal with the situation. In addition, the employee reporting sexual harassment is legally protected from retaliation by the employer.
What is Sexual Harassment?
Sexual harassment comes in many forms. Some of these forms include:
- Being directly asked for sex or sexual contact.
- Unwanted and unwelcome sexual advances. This can be requests for dates or requests for meeting outside of the workplace.
- Sexually charged speech.
- Physical contact of a sexual nature.
- Being required to function in a hostile work environment.
- Behavior deemed inappropriate to the workplace. This includes sexist and derogatory language and pornographic images in the workplace.
- Discriminatory and unfair treatment, including denial of opportunities and promotion, based on gender.
Should I Pursue a Sexual Harassment Lawsuit?
Individuals victimized by sexual harassment are often reluctant to pursue a lawsuit. They are often caught in the dilemma of fearing the potential of negative consequences of reporting sexual harassment, while knowing that action must be taken. Attorneys experienced in sexual harassment cases take great care in the way they treat clients that have been victims of harassment. Great attention will be given to the privacy of the client. And, if possible, the case will be pursued on a completely private basis through negotiations with the employer or through filings with agencies such as the EEOC which are charged with the responsibility of investigating claims of such harassment.
Whether it is sexual harassment or other forms of discrimination in the workplace, it is important to understand the rights and legal options of the worker. If an employer has violated your rights, set up a no cost consultation with a law firm that is experienced in workplace discrimination.
The Job Search and Discrimination by Age
When employers shut you out because you exceed some arbitrary age limit, this can be exceedingly frustrating. Not only is the employer perpetrating an obvious injustice, in many cases, it may be clear that you are best candidate for the position. There are laws prohibiting many types of discrimination. U. S. Equal Employment Opportunity Commission (EEOC) enforces these laws. It behooves an employer to know the relevant laws and regulations. Age is one of the areas of discrimination covered by laws.
Employers are not to treat job applicants or existing employees less favorably because of their age. Current law, covered by Age Discrimination in Employment Act of 1967 (ADEA), applies to employees and job candidates equally. The law applies to people age forty and over. Employers can favor an older employee over a younger employee but not the other way around. The law applies even if both employees are over forty. In other words you cannot hire a 45 year old worker over a 55 year old employee due to age.
Work Contexts and Age Discrimination
The law covers discrimination in many aspects including hiring, termination, pay level and pay raises, work assignments, promotions, layoffs, benefits, training and general working conditions.
Harassment and Age Discrimination
Law forbids harassment due to age. Examples of such harassment could include offensive remarks about a workers age. Harassment is not everyday good-humored banter or an isolated remark. However, if the banter and remarks become so severe and frequent that it creates a work environment that is hostile or offensive, that is harassment and prohibited by law. If the adverse treatment due to age results in negative employment decisions, such as termination, that is considered harassment and prohibited by law. It will be considered harassment if it is the victim’s manager or supervisor, a coworker or even someone who is not an employee such as client or vendor.
Policies, Practices and Age Discrimination
Policies and practices implemented by an employer need to be applied to everyone without regard to age. When applied, policies and practices can be illegal if they can be shown to have harmed or impacted negatively employees forty year old or older due to their age. Areas commonly effected include:
- Training and apprenticeship programs.
- Want ads and job notices.
- Employment inquiries.
- Benefits and retirement policies.
Any employer with more than twenty employees is subject to the Age Discrimination in Employment Act. It also applies to all government agencies, federal, state and local.
Nooses in the Workplace: A Disturbing Trend
A noose is placed on a desk or a chair, or on a door or in a locker. The symbolism is clear. Nooses in the workplace are meant to intimidate because of race. The noose of the hangman is meant to be a frightening visual representation of the harassment that included thousands of black people who died at the hands of lynch mobs following the civil war and on into the twentieth century. This history has led to symbolic use of a noose. It has long been a tool of various hate groups. The turning up of nooses in the workplace has been having an affect on black employees, and that affect has been spilling over to affect other minorities.
Equal Employment Opportunity Commission (EEOC) officials and law enforcement officials report on this trend. While companies routinely try to settle nooses in the workplace cases out of court, the EEOC are always pursuing dozens of such cases. The EEOC point out that, when in seen light of their overall caseload, these cases are disproportionally high. The EEOC maintains that nooses in the workplace is a growing trend.
Every case of nooses in the workplace has its own distinctive characteristics, but there seem to be elements common to most of the cases brought forward. The noose is almost never the only method of intimidation. Racist slurs, racial epithets, racist jokes, racist graffiti and other ongoing intimidation and harassment usually accompany the noose.
No one knows for sure why these racist incidents have risen lately. Some discrimination attorneys have speculated that there may be a growing intolerance by younger workers not familiar with the civil rights movement and struggles of the 1950’s and 1960’s. The incident may grow out of resentment of some whites over the implementation of affirmative action resulting in diverse workplaces where blacks and minorities were previously excluded.
Another reason cited for the rise in such incidents reported to EEOC is a growing number of employers fighting it in court. Some employers are referring to the incidents as banter and horseplay between employees without harmful intentions.
There have been some accusations of minority workers filing false claims for purpose of collecting money. Employment and discrimination attorneys generally agree that a false claim of racially related harassment, violence and misconduct in the workplace is extremely rare. History has borne out that out; there have been only a handful of false claims involving nooses in the workplace. Employment and discrimination attorneys also point out that, when subjected to scrutiny, the false claims are easily brought to light.
“An evil deed is not redeemed by an evil deed of retaliation”
Race discrimination can come in many forms, from the subtle to the outright reprehensible. In September 2011, the criminal justice system addressed one of the most heinous acts of racism our country has seen in the past 50 years. This incident is not a reflection on any particular part of our country. Rather, it evidences that racism and discrimination still exist in America today and the criminal justice system is at the forefront of combating the issue.
On September 19, 2011, Deryl Dedmon was indicted for felony murder with hate-crime enhancement in Jackson, Mississippi. It is alleged that Mr. Dedmon, who is 19 years old and White, found James Anderson, who was 48 and African American, in a motel parking lot and attacked him. Mr. Dedmon, with a group of White teenagers beat Mr. Anderson and then Mr. Dedmon ran him over with his truck. Afterwards, Mr. Dedmon robbed Mr. Anderson, but it has yet to be determined what was stolen, other than his life. Prior to this vicious assault and murder, Dedmon and the group of teenagers were drinking and partying and then decided to “find a Black man to mess with.” The atrocious assault was caught on video surveillance from a nearby hotel camera. It is further alleged that Mr. Dedmon was using racial slurs and was yelling “White power” during the assault.
The Mississippi criminal justice system, as well as the District Attorney of Hinds County Robert Smith, have taken the proper steps to address the severity of Mr. Dedmon’s actions. Life without parole, as well as the death-sentence accompanies a conviction on these charges.
In a letter written by Barbara Anderson Young, Mr. Anderson’s sister, she asks District Attorney Smith not to consider using the death penalty in this case. “We oppose the death penalty because it historically has been used in Mississippi and the South primarily against people of color for killing Whites. Executing James’ killers will not balance the scales. But sparing them may help spark a dialogue that one day will lead to the elimination of capital punishment.” Ms. Young further commented, quoting Coretta Scott King, the widow of Martin Luther King, Jr., “An evil deed is not redeemed by an evil deed of retaliation.” Ms. Young’s compassion and understanding exemplify that this particular incident of racial discrimination represents more than just that; it represents the ongoing struggle that society has in determining the most effective mechanism by which to deal with the problem of discrimination. It further exemplifies what should be a societal goal of illuminating the continuing and ever important struggles for equality.
It is abundantly clear that racism still exists and it is evidenced in the most shocking and devastating ways. Deryl Dedmon is only 19 years old, but he has allegedly managed to ruin the lives of two families forever, all in the name of racial hatred. He allegedly did not know James Anderson, but James Anderson was a man with a family, just like Mr. Dedmon. Perhaps when there is a day that we all view one another as Human, rather than as being part of a certain race, ethnicity or religion, we will be able to better succeed as a society. Perhaps, Ms. Young’s hope that as a result of her brother’s untimely and horrific death it will enable us to engage in a critically valuable and necessary dialogue may be realized.
Although Valli Kane & Vagnini does not practice criminal law, our interests are aligned with those prosecuting hate crimes across this country in that we do fight for civil rights and the right to work and live without the injustice of bigotry and discrimination. Being discriminated against for any reason is inexcusable and we encourage all those exposed to any type of discrimination to stand up and seek justice.
Post Wal-Mart Ruling in U.S. v. City of New York
In the case of U.S. v. City of New York, United States District Judge Nicholas Garaufis, in the Eastern District of New York, rejected defendant New York City’s attempt to de-certify a class of black firefighters in their suit alleging race discrimination in hiring procedures. The City unsuccessfully relied on the Supreme Court’s recent ruling in Wal Mart v. Dukes, in which the Court more strictly limited the parameters for certifying class actions.
The Supreme Court held in Wal-Mart that there must be a “common question” of law or fact that “must be of such a nature that it is capable of class-wide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” In U.S. v. City of New York, the court found there to be four common questions, which are “whether Defendants” uses of [the written examinations] had a disparate impact upon black applicants for the position of entry-level firefighter; whether Defendants’ uses of those examinations were job related to the position in question and consistent with business necessity; whether alternative practices that satisfy the asserted business necessity without disparate effect are available; and whether Defendants engaged in a pattern or practice amounting to intentional discrimination.” Importantly, this court also cites to a 2nd Circuit case from 2006, finding that “for purposes of Rule 23(a)(2) [class certification] even a single common question will do.”
Why were the plaintiffs in this case permitted to maintain their class status, while the plaintiffs in Wal-Mart lost theirs? It boils down to the breadth of the scope of the class. In Wal-Mart, the class was essentially every woman, regardless of position or geographic location, employed by a company that has many different classes of employee, ranging from greeters paid on an hourly basis to salaried managers. The Wal-Mart court essentially found that there was not a common issue of law or fact between a store greeter working in a rural Arkansas location and an assistant store manager working in a Californian urban location, especially given the lack of evidence in that case.
Judge Garaufis in this particular case was confronted with no such issue. The class was limited to only black firefighters and firefighter applicants who sat for one of two specific written exams, and who were harmed by the City’s use of a pass/fail screening device with specific cutoff scores or a method of rank-order processing. Compared with the very broad class in Wal-Mart, which included all women who were harmed by a vague and lightly-evidenced “culture” of sexist discrimination, the class considered in this case is very narrowly tailored and easily meets the statutory requirements.
This case is likely the first of many that will demonstrate that Wal-Mart applies most forcefully to cases that push the boundary in terms of how broad a class should be. For the majority of class actions that specify classes based on specific and tailored criteria, Wal-Mart should not pose a major threat to plaintiffs going forward.
Workers Adjustment and Retraining Notification Act (WARN)
The Workers Adjustment and Retraining Notification Act (“WARN”) became effective on February 4, 1989. WARN requires employers to give employees notice when an employment change is advanced. The Act calls for at least sixty (60) days notice to employees who will experience employment loss either because of a plant closing or because of a scheduled mass layoff.
An employee experiences employment loss in any one of the following three scenarios:
- An employment termination, other than a discharge for cause, voluntary departure, or retirement;
- A layoff exceeding six (6) months;
- A reduction in an employee’s hours of work of more than fifty (50) percent per month for a period of six (6) months.
WARN covers employers who have more than one hundred (100) employees. Employees who work less than six (6) of the past twelve (12) months, as well as employees who work less than twenty (20) hours a week are not counted into this total. Private for profit or non-profit, as well as public and quasi-public entities who operate in the commercial context are obligated under WARN to give their employees notice pending a plant closing or mass layoff. Federal, State or local government entities are governed under WARN. Hourly, salaried, managerial and supervisory employees are all entitled to the sixty (60) day notice. Business partners however, are not entitled to the Act’s protections.
Employers of a temporary project are not required to give their employees notice prior to plant closings or mass layoffs. Additionally, if the closing of the plant or mass layoff is the result of completion of a project, those workers are also not entitled to WARN’s protection. The employees must have been hired with the understanding that their employment was conditional on the completion of the project. An employer cannot label an ongoing project as temporary to avoid the requirements under the WARN act. Additionally, striking employees are not entitled to notice when their actions lead to a lockout, which acts as an equivalent to a closing or mass layoff. Non-striking employees who are adversely affected are entitled to notice.
If fifty (50) or more employees will experience employment loss (defined above) during any thirty (30) day period, then WARN requires employers to inform their employees. Part time employees and new employees are not included in this employee total. Advanced notice is also required when an employer has a mass layoff proposed. If during any thirty (30) day period, five-hundred (500) or more employees, or forty-nine (49) to five-hundred (500) employees, which make up thirty-three (33) percent of the workforce are going to be laid off, then the employer must give notice. The employee calculation for plant closings apply to mass layoffs as well (part time and new employees are not included in the total employee calculations).
If an employer plans to sell his business or is involved in the sale of the business, employees are still entitled to receive notice if a closing or mass layoff is proposed. It is the seller of the business’ responsibility to give sixty (60) days notice to his employees up to and including the date/time of the sale if there is a risk of employment loss. The buyer is responsible to provide employees with sixty (60) day notice of any proposed plant closing or mass layoff after the date/time of the sale. Notice that the business has been sold is not required unless a closing or mass layoff is in the works.
The employer must give notice to either the chief elected officer of exclusive represented employees, the labor union, or to unrepresented workers who may reasonably be expected to experience employment loss. Even employees who do not count towards employment totals, those workers who work less than twenty (20) hours a week or who have worked less than six (6) of the last twelve (12) months are still entitled to due notice. Notice must also be given to the State dislocated worker unit, as well as the chief elected officer of the local government where the employment site is located. There are, however, three exceptions to this requirement:
- If the employer is seeking new capital to stay open and advanced notice would ruin this opportunity, then notice is not required. This exception only applies to plant closings and not mass layoffs.
- If a plant closing or mass layoff was not reasonably foreseeable at the time notice is required, then the notice requirement is excused.
- If a plant closing or mass layoff is the result of a natural disaster, such as a flood, earthquake, drought or storm; notice is not required.
If an employer does not provide sixty (60) days notice, and relies on one of the exceptions listed above, the employer must prove that one of the exceptions did in fact take place.
While notice is required sixty (60) days in advance, there is no requirement delineating what that form must be. The notice must be in writing, but any reasonable method of delivery that will ensure receipt sixty (60) days prior to closing or mass layoff will suffice. The notice must specify the reasons for a plant closing or mass layoff. If either will occur more than fourteen (14) days after the date announced in the notice, then additional notice on behalf of the employer is required.
If you have been affected by a plant closing or mass layoff and your employer has not followed the requirements under the Worker Adjustment and Retraining Notification Act, contact Valli, Kane & Vagnini to learn more about your rights and legal options.
Are you protected from discrimination on an Indian Reservation?
Broadly speaking, federal protections against discrimination in the workplace serve Americans living in all 50 states. However, discrimination rules can be quite different if that discrimination took place on an Indian reservation. Many of these reservations exist as entities separate from the states, pursuant to federal law and treaties between the reservation and the federal government. As a result, victims of workplace discrimination on reservations often have to go through a different process in order to seek recourse.
While Congress does have the power to create and enforce federal law on Indian reservations, Congress also has the power to exempt Indian reservations from those same laws. For example, Indian reservations are exempt from Title VII of the Civil Rights Act and Title I of the Americans with Disabilities Act. These two acts combined comprise main sources of federal law governing race, gender, and disability discrimination in the workplace.
However, if you are a victim of discrimination on an Indian reservation, you may still have recourse. Some reservations voluntarily allow themselves to be regulated by the federal statutes from which they would otherwise be exempt, and even more reservations enter into agreements with the states in which they reside and voluntarily subject themselves to applicable state law protections for workers. You’re starting point, and best bet for a favorable outcome regarding your discrimination claim, is to become familiar with the constitution and laws of your particular reservation; see what, if any, local reservation laws have been violated; and investigate what administrative and judicial venues exist under reservation law. Often, a reservation will have its own administrative and judicial systems, with investigators, judges, and other judicial officials, to resolve employment disputes.
Dukes, et al. v. Wal-Mart Stores, Inc.
The Supreme Court recently rejected the certification of a class of plaintiffs, consisting of all of Wal-Mart’s current and former female employees, in a Title VII gender discrimination suit against the retail giant. The plaintiffs in this case allege that Wal-Mart, the largest employer in America with over one million employees, discriminates generally against women in pay, job promotions, and in administering disciplinary actions.
Commonality Requirement
In this decision, the Supreme Court set forth and clarifies the appropriate standard for seeking class certification under Federal Rule of Civil Procedure 23, and specifically, the “commonality” requirement. In order to certify a class, the plaintiffs must prove that there are questions of law or fact common to the class. In the Court’s words, there must be a “common contention” that “must be of such a nature that it is capable of classwide resolution- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”
The plaintiffs can satisfy this burden through one of two main ways, the Court held. First, the plaintiffs can assert that the employer used a “biased testing procedure” to evaluate its employees or applicants; or second, that the “employer operated under… a general policy of discrimination.” In proving a general policy of discrimination, plaintiffs may use anecdotal evidence from enough members of the potential class or expert evidence. The Court cited a case that it decided in 1982 as the basis for these two methods.
In this case, however, the plaintiffs fell short. They argued that rather than there being a policy of blatant discrimination, there was a policy of providing wide latitude to store, district, and regional managers, and this policy led to rampant gender discrimination. The Court concluded that this policy of manager autonomy is insufficient to prove commonality, since there is so much potential variation in the behaviors of each manager. The Court did note, however, that such a policy of autonomy is better-suited to showing disparate impact in proving an individual discrimination claim under Title VII, just not for class certification.
Additionally, the plaintiffs in this case only offered accounts of discrimination from forty potential members of the class, where the total number of potential individuals in the class was 500,000. That would have amounted to each account of discrimination representing 12,500 other potential members of the class, where the Court noted that in previous cases, a one-to-eight ratio was found to be permissible. Moreover, the expert in this case failed to make any compelling causal link to the “culture” at Wal-Mart that allegedly led to discriminatory conduct, and could not, with any specificity, demonstrate the impact of that discriminatory “culture” on management decisions.
With regard to commonality, this decision will likely not have a great impact on victims of gender discrimination in the workplace, or even to class actions alleging the same. The Supreme Court looked at the facts of this case and applied it against a standard that it first articulated in 1982 and determined, unfortunately, that they were not sufficient to sustain a class action in this particular case.
Backpay
The Court also tackles the issue of whether or not cases in which the plaintiffs seek backpay qualify for class certification under Rule 23(b)(2). The Court, unfortunately, has held that they do not, writing that this rule cannot be used to certify claims for monetary relief where the monetary relief is not incidental to the injunctive or declaratory relief. Individualized relief, including backpay, the Court goes on to write, does not satisfy Rule 23(b)(2).
The Court cites possible issues that could arise with plaintiffs attempting to minimize the importance of monetary damages in order to become eligible for class certification under Rule 23(b)(2), and reasons that some plaintiffs may unwittingly forfeit their right to compensatory damages when the class is certified in this manner. Importantly, the Court looks to the language of Title VII and finds that if Wal-Mart proves that if it took an adverse employment action against an employee for reasons other than discrimination, the court cannot order it to pay backpay. The Court then looks to the Rules Enabling Act, which states that courts should not interpret Rule 23 in any way that would “abridge, enlarge or modify any substantive right,” and concludes that certifying the class under Rule 23(b)(2) would take away Wal-Mart’s right to litigate its statutory defenses to each individual claim. Essentially, defendants such as Wal-Mart get to raise their affirmative defenses for each employee individually, without any courts’ reliance on “Trial by Formula.”
Ultimately, this Supreme Court ruling leaves plaintiffs with the option to certify their class under Rule 23(b)(3), which only imposes a handful more burdens, many of which are easily overcome, and allows plaintiffs to opt-out of the class to pursue their claims individually. On many levels, this finding further hinders the rights of workers and their ability to to effectuate necessary change in the unlawful corporate culture impacting many minorities and women in the workplace on a daily basis.
Retaliation – Employees Should Not Fear Reporting Discrimination –
Employees who have been discriminated or harassed against in the workplace should not be hesitant to report these claims. Retaliation laws are in place to protect the employee from being harassed or targeted after they exercise their right to report discrimination. When an employee reports discriminatory acts to the Equal Employment Opportunity Commission, their respective state equivalent, the Department of Labor, or even internally to their employer, retaliation laws are in place to stop the employer from taking adverse action against the wronged employee.
Retaliation laws protect against all forms of retaliation. Retaliatory actions include, but are not limited to:
– Disparate Hiring Practices
– Unwarranted Firing
– Pay Reductions
– Change in Job Assignments
– Promotion Discrepancies
– Layoffs
– Unwarranted Training Procedures
– Denial of Fringe Benefits
– Alteration of any other Term or Condition of Employment.
The Equal Employment Opportunity Commission is a federal agency in place to protect the rights of employees. It is “an unlawful employment practice for an employer to discriminate against any of his employees…because the employee has opposed any practice made unlawful employment practice by Title VII.” 42 U.S.C. § 2000e-3(a). EEOC Retaliation laws bar the employer from exercising any retaliatory acts, even retroactively, against an employee after they file an EEOC Charge of Discrimination. Employees should not fear reporting discrimination because the EEOC is an agency to rectify these wrongs.
Most states have a functional state equivalent to the EEOC and this is another avenue for discriminated employees to use to remedy the harassment they have endured. In New York specifically, New York Labor Law Article 20-C § 740 is in place to forbid an employer from taking retaliatory actions against an employee who reports discrimination in the work place. New York employees have protection at both the Federal and State level when exercising their right to be free of discriminatory actions taken by their employer. For employees working in New York City, they even have a third layer of protection under the New York City Human Rights Law.
Employees do not have to report acts of discrimination to one of these agencies in order to be afforded protection under these anti-retaliation laws. An employee is safeguarded against retaliation in any form when they complain about discrimination or harassment directly to their employer by complaining to Human Resources, management or some equivalent. It is vital, however, when complaining directly to your employer, that the aggrieved employee document their complaint of discrimination or harassment in some manner, whether through a formal document, email, or in the presence of a trusted witness.
For an employee to prove they have been retaliated against, they only need to show that the retaliation has produced “an injury or harm.” Burlington Northern & Sante Fe Ry. V. White, 548 U.S. 53, 67 (2006). The injury or harm requirement must however stem from or convey a feeling or perception of discrimination. Employees should not be weary of reporting acts of retaliation, but should exercise their right to be free of these acts. Retaliation can also occur if someone has been negatively affected by your report of discrimination. The EEOC’s Retaliation laws protect the rights of third–parties, even though they have not made claims of discrimination themselves. Thompson v. North American Stainless, LP (2011). For a more detailed discussion on how third-parties are protected by the law, check back to see further blog discussion on our website.