Federal, state and, local laws prohibit employment discrimination and harassment based on certain protected characteristics, such as sex, race, religion, disability, and age. An aspect of anti-discrimination in employment law that does not get as much attention is its ban on retaliation against employees who report discrimination or harassment, complain about it, take legal action against it or cooperate in the discrimination investigation or lawsuit of another employee.
Employer retaliation against an employee can take many forms in the workplace like demotion, failure to promote, failure to give favorable assignments, unequal perks, undeserved bad reviews, lower raises than deserved, and anything else that negatively impacts the terms and conditions of the job. But today we focus on retaliatory discharge – firing someone in retaliation for engaging in the protected activity of bringing illegal discrimination or harassment to the attention of management or any of the other activities described above.
An NYC example
The restaurant industry news publication Eater New York recently reported on a lawsuit filed on September 13, 2020 in Manhattan Supreme Court that alleges the plaintiff-barista was wrongfully terminated in retaliation for reporting long-term sexual harassment at work in a Nolita café.
The complaint alleges that one of the restaurant founders, his brother, and other colleagues regularly made crude comments and asked personal questions of a sexual nature. The plaintiff also allegedly endured unwanted touching and was summoned to a staff meeting that was scheduled at a strip club. The plaintiff alleged that the co-founder told her that if she told anyone else about the strip club incident, he would fire her.
Then, when the barista told the other co-founder about the two years of harassment, the co-founder allegedly said that she would remedy the situation but did not. She asked the plaintiff to take a leave for her “emotional distress,” but the employer terminated the barista when she tried to return to work.
The barista’s lawsuit brings claims under New York state law and the New York City Administrative Code and Human Rights Law. In addition to wrongful termination, she alleges sex discrimination, sexual harassment, a hostile work environment, an unlawful discriminatory practice of failing to immediately correct the harassment, and other claims.
She seeks compensatory damages for “mental, emotional and physical injury, distress, pain and suffering and injury to her reputation” as well as legal fees and costs, lost wages and punitive damages (meant to punish and deter others from the same conduct).
A New York employer should work with an experienced employment law attorney to completely understand retaliatory discharge and to put in place policies and procedures for appropriately handling discrimination and harassment complaints and investigations instead of reacting by wrongfully terminating the complainant. Should the employer find themselves accused of retaliatory discharge, the lawyer can launch a vigorous defense.
On the other hand, any employee, who believes they were wrongfully discharged or otherwise retaliated against in this context, should speak with legal counsel as early as possible to understand how to respond and the legal remedies that may be available.