Articles

Retaliation

January, 2020

PROTECTION AGAINST WORKPLACE RETALIATION

There are a number of federal and state laws protecting employees against workplace retaliation for basically, DOING THE RIGHT THING, called “protected activity.”

These laws protect employees from discipline, for example, for speaking up against dangerous, unsafe or unhealthy workplace conditions or employer dishonesty amounting to fraud.  They also include, as the Busca Law Firm is currently prosecuting, an employee who steps up and supports a co-employee’s complaint of sexual harassment.  Both Connecticut and federal law contains such protection for an employee who signs a statement or provides testimony or support as a witness to workplace sexual harassment.

In fact, under Connecticut law, protection against retaliation extends to even non-employers.

As one court has stated, “The court notes that retaliation claims brought under Connecticut General Statutes Section 46a-60(b)(4) are not limited to employers.  Said section provides that it shall be a discriminatory practice ‘for any person, employer … to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory practice…’

“ ‘ Person’ means one or more individuals, partnerships, associations, corporations, limited liability companies, legal representative, trustees, trustee in bankruptcy, receivers and the state and all political subdivisions and agencies thereof.” Hall v. BXI of New England, Inc., 2019 Conn. Super. LEXIS 2153, judicial district of Fairfield at Bridgeport, CV 17606739S, August 13, 2019, Welch, judge.

But in order to be protected under the law, the employee must step up and be heard.  The employer must have notice of such support.  The legal elements of a claim of retaliation are as follows:

• That the employee was engaged in protected activity;
• That the employer was aware of that activity;
• That the employee suffered an adverse employment decision [i.e., the discipline];
• That there was a causal connection between the protected activity and the adverse employment action.

Mele v. City of Hartford, 270 Conn. 751, 855 A.2d 196 (2004).

Furthermore, unlike discrimination claims, retaliation claims have a “more relaxed standard” and are not limited to conduct that affects the terms and conditions of employment, such as hiring, firing, change in benefits or reassignment.  See, Douglas v. City of Waterbury, 494 F.Supp. 2d 112, 124 (District of Conn. 2007).

This liberal workplace protection standard comes from the United States Supreme Court. 

The Court basically stated that a plaintiff only need show that the employer’s adverse action could prevent a reasonable employee from making or supporting a charge of discrimination:  “A plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  Burlington North and Santa Fe Railroad Company v. White, 126 S.Ct. 2405, 2415 (2006).

As we enter a new decade, certainly fueled by the MeToo movement, employees are stepping up and Doing the Right Thing by supporting their co-workers whenever discrimination, in any of its ugly forms, appears at the workplace.

Speak to an experienced employment attorney if you believe you have witnessed something improper at the workplace.