Perhaps the verb to use is not “should,” but “must.” The laws have changed – at least in New York – that a party bringing discrimination claims need not complain. The real question is whether an employer can use an employee’s failure to complain as a defense: “Well, Ms. Plaintiff, you never complained about discrimination until you filed this lawsuit…Why not?” There are real answers to that question – the employee might be afraid or fear retaliation. But to complain is to protect. If you sense discrimination in the workplace, you should complain; the facts will differ from case to case, but it can help your legal position, and please do it in writing.
When an employee complains of discrimination, they engage in what anti-discrimination laws consider a protected activity. If that complaint results in a change in the conditions of employment that would dissuade a reasonable employee from making a complaint of discrimination, then you have a case for speaking up. According to the U.S. Equal Employment Opportunity Commission, and in my own practice I see that an employee who reports unlawful behavior might end up on the receiving end of a denied promotion, verbal harassment; they could even be fired. Any of these retaliatory actions are prohibited can form the grounds for a lawsuit. If you are fired for retaliatory reasons, your case might be easier to prove.
To prove retaliation, you had to have been engaged in a protected activity. Second, an employer needs to have enacted a retaliatory action against you – it need only be an action that would dissuade a complaint by a reasonable employee. Finally, a causal link between the retaliation and the employee’s protected activity has to be established. The closer in time the better; the more retaliatory acts the better for your case – even if not in the workplace.
An employee must prove that “but for” the protected activity she would not have been subject to retaliation, but not under the City Human Rights Law. The benefit to a retaliation cause of action is that jurors more easily may pinpoint and understand retaliation. Retaliation is revenge. Employers like to be in charge and don’t like it when an employee notes that it is doing something wrong. So if you feel you are being treated differently, if there is any way you can connect the treatment to discrimination based on a protected class – gender, race, sexual orientation, etc. – a mere complaint gives you greater power in court. Juries do understand discrimination, but discrimination is a dirty word. Retaliation is just getting back at someone, which people see all the time. Retaliation is a very jury-friendly cause of action.
Proving that you were unjustly punished by an employer, however, can be the hardest part of proving a retaliation claim. For instance, a manager or supervisor may openly state that an employee was fired for participating in an OSHA investigation or for reporting a discriminatory act. However, the supervisor might choose to keep quiet about the reason for the firing. In this case, the employee can still claim the firing itself was unwarranted by pointing out that there was no logical reason to be fired.
Challenging an act of retaliation may be difficult if the employer supplies reasons for a firing or a promotion denial that seems to have nothing to do with the employee’s protected activities. The employer may claim the employee was not performing to the company’s performance standards. An employer might also fire a worker on the grounds the worker was not arriving at the place of employment on time.
Anyone who feels their work performance is being maligned or falsely characterized could consult with an attorney to find viable options to contest the allegations. If the employer is falsifying records to make the employee look bad in attendance, the employee could counter with time cards or other records that disprove the allegation. A worker might also supply written reports that prove the employer initially approved of his or her performance.