The world of retaliation after Robinson v. Shell Oil.

• Author: Johnson, Bradley R.

In the ever-expanding world of litigation between employers and their employees, there is no larger protected class than those individuals who are shielded from retaliatory actions for taking part in the labyrinthical civil rights and whistle blower protection systems. While it is obvious an employer should not be free to fire an employee for filing a claim based on the Florida Civil Rights Act or reporting illegal activity to the appropriate government agency, what is not so obvious is what actions are protected, which actions by the employer might constitute retaliation, and how many people, other than the main complainant, are covered. In fact, recent decisional law extends this protection to people who are no longer working at the accused employer's business.

This article explores the parameters in which the practitioner must operate when analyzing and litigating disputes concerning alleged retaliation from both the plaintiff and defense perspectives. Because the Florida Civil Rights Act largely mirrors the federally equivalent laws in both style and purpose, federal case law is applicable.[1] As a bottom line, though, all "employees" are protected.

Robinson: An Expanded Definition of "Employees"

While prospective[2] and current employees have always been covered by anti-retaliation provisions, the use of the expression"employee" has recently been expanded. In the spring of 1997, a unanimous U.S. Supreme Court announced Robinson v. Shell Oil, 117 S. Ct. 843 (1997), holding the retaliation proscriptions of Title VII applied to former employees as well as current employees and applicants.[3]

Factually, the Robinson plaintiff was terminated after filing an EEOC charge.[4] The former employer later gave the plaintiff an unfavorable job reference to a prospective employer.[5] The plaintiff sued under Title VII, 42 U.S.C. [sections] 704(a), contending the bad reference was in retaliation for the EEOC charge. The lower court held former employees were not covered by Title VII and dismissed this action. The Robinson court reversed the lower court's ruling and held the term "employee" includes former employees.[6] Accordingly, anti-retaliation provisions of the various laws now apply equally to prospective employees,[7] current employees,[8] and former employees.[9] This holding is consistent with the public policy behind the various laws, which is to enable employees to engage in protected activities without fear of retaliation.[10]

The Major Florida Laws

Even though an employee generally does not have a property interest in a particular job[11] and the common law of Florida did not historically recognize the tort of retaliatory discharge,[12] there are now several statutes in place to protect employees from retaliation of most any sort.[13] The two major legislative dictates are the Private Sector Whistle Blower Retaliation Act and the Florida Civil Rights Act of 1992.

The Whistle Blower Protection Act, F.S. [sections] 448.102, prohibits an "employer"[14] from taking retaliatory personnel action against an employee because the employee has: 1) disclosed in writing and under oath to an appropriate government agency an "activity, policy or practice that is violative of a law, rule or regulation" provided the employee first raises the issue in writing with the employer and gives the employer a chance to remedy the situation;[15] 2) provided information or testimony to a government agency investigating an allegedly improper practice;[16] or 3)"[objected to or refused to participate in, any activity, policy or practice of an employer which is a violation of law, rule or regulation."[17]

As opposed to the more specific anti-retaliation portions of employment-related laws, [sections] 448 protects employees from retaliatory adverse employment action for reporting any improper practice to law enforcement agencies, whether they relate to the employer/employee relationship or not. Enacted in 1991, the act has been interpreted relatively infrequently.[18] But, as with F.S. [sections] 760, the Florida Civil Rights Act of 1992, it would seem logical that case law concerning the federal whistle blower would be instructive, at least until the state body of law becomes more fully developed. Though there is debate as to whether the employee must give the employer a written notice and a chance to correct the deficiency before bringing suit as outlined at [sections] 448.103(c),[19] it is clear the employer is prohibited from taking adverse retaliatory action against the employee if that employee has filed a written complaint, assisted in an investigation, or simply voiced a complaint to the employer about a practice in question. Similar reasoning, with more interpretive law, is found in the Florida Civil Rights Act of 1992.

As a general matter, that act protects employees against unfavorable treatment "because of [an] individual's race, color, religion, sex, national origin, age, handicap, or marital status."[20] Section 760.10(7) (1997) provides:

It is an unlawful employment practice for an employer ... to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, because that person made a...