Federal and state law protects employees from retaliation for pursuing employment discrimination and sexual harassment claims or participating in the investigatory process. However, employees still need to tread carefully to avoid the common traps laid by some unscrupulous employers. Recent court decisions have made it easier for employers to defend retaliation claims.
In June 2013, the Supreme Court handed down a decision in University of Texas Southwestern Medical Center v. Nassar that adjusts the standard of causality employees must meet in retaliation claims. This means that employers can now defend against allegations of retaliation by showing that the employee would have been fired or disciplined anyway for legitimate reasons, even if retaliation played a role in the adverse employment action. This tends to strengthen the already prevalent employer tactic of “building a book” on an employee by meticulously documenting every rule infraction and performance issue and then ostensibly taking action against the employee on that basis. To avoid this, employees should take care to do the following:

  • Take the time to learn your employer’s workplace policies, placing special emphasis on attendance and lateness policies.
  • Stay abreast of changes in workplace policy to avoid being cited for violating new rules.
  • Do not engage in minor rule infractions simply because they have been tolerated in the past.
  • Do not assume that minor rule infractions are acceptable simply because they are common among the workforce.
  • If you are cited, take advantage of any appeal or review processes your employer affords you.

If you feel you are the victim of retaliation after filing a employment discrimination, sexual harassment or other employment law claim, you need to inform your New York employment law attorney immediately. While many employers respect the legal prohibitions against retaliation, others may go to great lengths to lash out at employees who have voiced concerns.