Retaliation and Protection for Reports of Discrimination

As discussed in earlier Joseph & Norinsberg, New York Employment law blogs, employees in New York gain protection from unlawful employment practices from both New York’s Human Right’s Law and Title VII under federal law. For the most part, in interpreting the New York Human Rights Law (NYHRL), courts follow the lead of federal courts interpreting Title VII. In other words, if a claim is viable under one of the laws, it is viable under the other.

One of the protections provided under both laws is from discharge or discrimination for opposing practices forbidden under NYHRL or Title VII or filing a complaint for such practices. Opposing practices and filing complaints can come in many forms. For example, filing an internal company complaint regarding unlawful practices or filing a lawsuit arising out of such practices would both be protected. The unlawful practices covered are those that NYHRL and Title VII prohibit, namely, discrimination and harassment of employees based on race, color, religion, sex, or national origin.

As set out in the case of Schiano v. Quality Payroll Sys., 445 F.3d 597, 608 (2d Cir. N.Y. 2006), to succeed on a retaliation claim, an employee must establish the following:

Protected activity

Employer awareness of the activity

Adverse employment action

The adverse employment action was caused by the protected activity

Typically, it is clear whether the activity was protected (if it involves reporting discrimination or harassment, it is). Employer awareness is often clear as well, particularly where reports are written, which prohibits the employer from denying knowledge. The third and fourth elements are often the most disputed.

What constitutes an “adverse employment action” is hotly debated and court cases sometimes appear inconsistent. However, there are some general principles and the concept is applied a little more liberally in retaliation cases (compared to discrimination cases). For retaliation purposes, Reddy v. Salvation Army, 591 F. Supp. 2d 406, 424 (S.D.N.Y. 2008), set forth the definition of an adverse employment action is one that “one which might dissuade a reasonable employee from making or supporting a charge of discrimination.” As a practical matter, this almost always means termination or a decrease in pay or title. Courts have expressly held that criticism alone is not enough.

As to the fourth element, an employer will often argue, “Yes, I fired the employee, but because they weren’t performing, not because of their report.” An employee can rebut this often false statement, in a variety of ways including evidence of an employer’s prior comments indicating the adverse action was because of the report or more inferentially by presenting proof of employee’s consistent strong performance (e.g. employee evaluations and testimony of others in the office).

While Title VII and NYHRL are important sources of protections against retaliation, there are other federal and state laws that protect employees against retaliation for reporting unlawful activity under different circumstances. If you believe your employer has taken adverse actions against you because you did the right thing and reported unlawful activity, whether that activity was directed at you or someone else, contact the employee advocates at today at Joseph & Norinsberg today at (212) JUSTICE or e-mail us at info@employeejustice.com and let us take over the fight for you.

2020-09-17T22:34:13+00:00September 22nd, 2015|Whistle Blowing|

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Mr. Diego helped me WIN and reach a great settlement. Wages recovered from lack of pay and serious misconducts from employer. He was very informative and easy to talk to every step of the way. Very happy with the settlement I received. He will go for the win and get you what you deserve! If you having problems with employment I give Mr. Diego my full recommendation to get your issues resolved.

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To have Bennitta Joseph who wins high profile cases against companies like Delta is a win for any company. The fact that they equip entrepreneurs like me with tools to compete with fortune 500 is a competitive advantage. If you are a company that deals with people and wants to succeed, hiring her is a must!

This was the first and hopefully my last lawsuit and the process wasn’t what I thought. The patience shown to me (even when I became frustrated) was great. Everyone showed respect, sensitivity, and I’d recommend the firm to everyone. Losing my job set me behind on several bills, but I can now pay them. The situation I went through will help me going forward.

This was the first and hopefully my last lawsuit and the process wasn’t what I thought. The patience shown to me (even when I became frustrated) was great. Everyone showed respect, sensitivity, and I’d recommend the firm to everyone. Losing my job set me behind on several bills, but I can now pay them. The situation I went through will help me going forward.

Bennitta Joseph is committed to Justice. After be wronged at work in 2015, and discriminated against I felt very hopeless and wronged. I felt as though I had no hope standing up to a corporate giant, and no chance of winning. After explaining my case and sharing the facts Bennitta felt differently. She did warn me it would be a long and tough road and that I had to have thick skin. In my experience if you take Bennitta’s lead and trust her legal experience no case it too big, or too small for her…

Me trataron muy bien y estoy satisfecho con el servicio. Inicialmente llamé para unirme a un caso anterior, pero cuando ya era demasiado tarde para unirme a ese caso, estaban felices de luchar por un segundo caso. No pensé que podrían hacer que otro caso funcionara, pero lo hicieron. Aprendí cuáles son mis derechos en cuanto a salario mínimo y tiempo extra y puedo usar esta información en el futuro. Recomiendo mucho la oficina.

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I am very amazed and pleased for the wonderful work Diego Barros did for me and our co-workers, speechless to see how wonderful and constructive everything work. First time with Diego Barros and i am totally impressed to have seen how great you have worked for all of us, i will totally recommend you to anybody who is in need of help without at doubt at all in all senses.

Ysaac G

Mr. Diego helped me WIN and reach a great settlement. Wages recovered from lack of pay and serious misconducts from employer. He was very informative and easy to talk to every step of the way. Very happy with the settlement I received. He will go for the win and get you what you deserve! If you having problems with employment I give Mr. Diego my full recommendation to get your issues resolved. 

D.F.

To have Bennitta Joseph who wins high profile cases against companies like Delta is a win for any company. The fact that they equip entrepreneurs like me with tools to compete with fortune 500 is a competitive advantage. If you are a company that deals with people and wants to succeed, hiring her is a must!

Karleen L.

This was the first and hopefully my last lawsuit and the process wasn’t what I thought.  The patience shown to me (even when I became frustrated) was great.  Everyone showed respect, sensitivity, and I’d recommend the firm to everyone.  Losing my job set me behind on several bills, but I can now pay them.  The situation I went through will help me going forward. 

Isaiah B.

I had an excellent experience with the firm and with Bennitta Joseph as my attorney. Everyone I dealt with was extremely courteous, friendly and very helpful. The settlement will help me financially as I look for a job.

Kate P.

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