§1.7 VIII. Retaliation

• Jurisdiction: New York

VIII. Retaliation ¹⁸⁰

In the context of this book, retaliation means getting or exacting revenge.¹⁸¹ Particularly, when an employer takes adverse action against an employee because they have asserted their rights, filed a claim or raised an objection under the anti-discrimination or anti-harassment laws. It could be that the employee filed an internal complaint with human resources, an external charge with a human rights agency or court, or supported a fellow employee in same.¹⁸² Courts have been clear in their pronouncements on retaliation, its reaches, and what engagement in protected activity means:

An employee has engaged in protected activity if he has (1) opposed any practice made an unlawful employment practice by the statute, or (2) made a charge, testified, assisted, or participated in any manner in a Title VII investigation, proceeding, or hearing. . . . The opposition clause requires the employee to show that he had at least a reasonable belief that the practices he opposed were unlawful. . . . However, proof of an actual unlawful employment practice is not required to state a claim for unlawful retaliation. . . . Title VII's retaliation provision is not limited to actions and harms that relate to employment or occur at the workplace. It covers employer actions materially adverse to a reasonable employee, that is, actions that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. ¹⁸³

The reason one might engage in retaliation? To deter employees from engaging in activities otherwise protected under the law.¹⁸⁴

Under both New York law¹⁸⁵ and federal law,¹⁸⁶ it is a separate violation if an employee suffers an adverse employment action, termination or otherwise, in retaliation for their having opposed discrimination suffered by another, participated in an investigation, supported the claim of another, or filed a claim alleging discrimination on their own behalf.¹⁸⁷ Although, in New York, if both claims (discrimination and retaliation) arise from the same facts and occurrences, plaintiff's choice of remedies (i.e., choosing to proceed in court or New York State's Division of Human Rights, see Chapter 5, infra) will be binding for both claims; retaliation cannot be raised in court while the discrimination claim proceeds in the DHR, or vice versa.¹⁸⁸

Importantly, even if the employee's underlying claim of discrimination fails, the employee may still maintain a separate and substantiated claim of retaliation.¹⁸⁹ This also includes wrongful actions taken against an employee after an internal complaint.¹⁹⁰

For instance, under both New York City and New York State law, and federal law in the Rehabilitation Act and Americans with Disabilities Act (see Chapter 6, infra), a plaintiff can bring a claim for retaliatory action based on the same standard:

In order to make out a claim for unlawful retaliation under state or federal law, a plaintiff must show that "(1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action." ¹⁹¹

The standard under Title VII is similar, as stated by the U.S. District Court for the Middle District of Louisiana: "A plaintiff establishes a prima facie case for unlawful retaliation under 42 U.S.C. § 2000e–3(a) and § 1981 by proving: (1) that he engaged in activity protected by Title VII or § 1981, (2) that an adverse employment action occurred, and (3) that a causal connection...