Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Wednesday, March 23, 2011

Supremes Pretty Consistently Oppose Retaliation

The Supreme Court isn’t exactly known for being pro-employee. But it has been fairly consistently pro-employee in one area: retaliation. Yesterday’s ruling in favor of an employee who complained verbally about a Fair Labor Standards Act (FLSA) violation is just one of a series of recent rulings that demonstrate employers need to beware of retaliating.
Oral complaints are protected: In yesterday’s Kasten v. Saint-Gobain Performance Plastics Corp, the Court found that the anti-retaliation provision of FLSA which applies to people who “file” complaints applies even where the “filing” was purely a verbal complaint.

Retaliation against a fiancé is illegal: Earlier this year, in Thompson v. North American Stainless, LP, the Court ruled that the fiancé of an employee who complained about sex discrimination could bring a retaliation claim when he was fired shortly after she complained. It’s, “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” Yeah. It was pretty obvious, wasn’t it?

You don’t have to be the one who complained to be protected: In 2009, in Crawford v. Metropolitan Government of Nashville, the Court decided an employee who was interviewed in a sexual harassment investigation was protected: “The antiretaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.” Gotta love this one since she won a $1.5 million verdict last year after the case went to trial. Oh, and because the majority opinion referred to the employer’s position as “freakish.” Well, not quite their whole position, but the word “freakish” was used.

Race discrimination statute prohibits retaliation: In 2008, the Court in CBOCS West, Inc. v. Humphries found that 42 U.S.C. § 1981(a post-Civil War race discrimination statute) prohibits retaliation.

Age discrimination statute prohibits retaliation: The same day in 2008, the Court in Gomez-Perez v. Potter, Postmaster General found that the Age Discrimination in Employment Act similarly prohibited retaliation against a federal employee.

Retaliation other than termination is illegal: In 2006, the court decided Burlington Northern v. White said: “We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

So while some other employment laws may be slowly eroding away in favor of employers, the anti-retaliation laws are alive and well. Does this mean employees can run to the courthouse at will now? No. Employees still need to be concerned about retaliation. You need to know your rights before you complain.

Donna’s tips:

a. There is still no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or jerkish behavior. Only if you do something that puts you in a legally protected category are you protected from retaliation. That means objecting to something that’s illegal under a statute such as Family and Medical Leave Act, Title VII, state discrimination laws, wage/hour laws, OSHA violations, or some other legal violation.

b. If you’re thinking about bringing a claim under a whistleblower law, there are lots of hoops you have to jump through, so know your responsibilities and rights under the whistleblower laws before you complain.

c. I did a post about when you should think about reporting coworkers and how to do it. Despite yesterday’s ruling about oral complaints being protected, I still suggest you put your complaint (if it’s a legally-protected complaint) in writing so the employer can’t deny it later.

d. General harassment, hostile environment and bullying are not illegal, so you’re not protected from retaliation if you report them.


  1. Dear Donna:

    I don't know about law but bullying is outright wrong in my humble opinion.

  2. I agree D.M. It's a waste of company time, so HR departments should always take it seriously and shut it down. Nobody should have to be afraid at work.


I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.