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 Rights 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”?
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 wrongful 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 consistently strong performance (e.g. employee evaluations and testimony of others in the office).
Speak With an Employment Attorney If You Are the Victim of Retaliation at Work
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 [email protected] and let us take over the fight for you.
