More workers are suing their employers for ‘retaliation’

It’s illegal for an employer to retaliate against a worker who complains of discrimination. This is true even if the employer genuinely believes that the worker’s claim is untrue. What’s more, workers who are retaliated against – through changes in their job, or having to endure a hostile environment – can sue in court for damages. And these days, more and more workers are doing just that. In fact, “retaliation” is now the single most common type of complaint filed with the federal Equal Employment Opportunity Commission, making up 36 percent of all claims last year.

That means there are more claims for retaliation than for any of the specific underlying types of discrimination, such as race, sex, age or disability. In the past, many workers would sue for discrimination and “add on” a claim for retaliation, more or less as an afterthought. But these days, a growing number of workers are filing lawsuits that focus almost entirely on what the employer did after the initial complaint about job bias was made.

One reason is that it can be easier for workers to persuade a jury that they were retaliated against after they complained than that they were discriminated against before they complained. For instance, few employers come right out and say that they are passing employees over for a promotion because they are “too old,” so it can be difficult to prove that the employer was motivated by age rather than by some legitimate job concern. And sexual harassment complaints can sometimes become a “he-said-she-said” battle in which it’s hard for a jury to decide who’s telling the truth.

On the other hand, jurors might be very willing to believe that an employer who was accused of discrimination became angry and tried to “get back” at the accuser. Take the case of Moises Mendez, who worked as a baker at the Westin Hotel in Times Square for seven years. He complained to the hotel management that he suffered humiliating treatment at the hands of his co-workers, who made fun of his appearance, called him names such as “Speedy Gonzales,” and even punched him in the face.

According to Mendez, three weeks after he reported the incidents, the hotel installed a video camera in the kitchen space where he worked. He sued, claiming that the installation of the camera amounted to retaliation for his complaints.

At trial, the hotel argued that it installed the camera in order to investigate the harassment. But Mendez noted that the camera was pointed only at him, not at other areas of the kitchen, and argued that it was there not to protect him but to intimidate him.

Mendez also introduced evidence that his complaints had been altered by the company. He claimed that one of his complaints included a statement by a co-worker that he saw another worker approach Mendez with his fist drawn, but someone removed this statement and then attached Mendez’s signature page to the altered document.

The jury found against Mendez on the underlying discrimination claim. But it nevertheless found that the hotel had retaliated against him – and it awarded him $1 million for his pain and suffering, and an additional $2 million in punitive damages against the hotel.

The case shows that employers need to be extremely careful about how they treat employees who complain about discrimination. They need to consult an attorney right away about steps to take to make sure that supervisors do not retaliate against an employee or do anything that could be perceived as retaliation.

On the other side, employees who complain about mistreatment in a workplace should carefully document how they are treated afterward, in order to protect their rights.

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