Articles Posted in Retaliation

No law requires employers to offer employees severance pay upon termination.  Where an employer has a severance pay plan, however, the obligation to pay severance is triggered upon a qualifying event as defined by the plan, policy or contract at issue.  In most cases, employers will only pay severance in exchange for a general release of employment discrimination claims.  Last week, in Henry v. Federal Reserve Bank of Atlanta 12-cv-1282 (M.D. Tenn., March 17, 2014), however, a judge ordered the employer to show cause why its attempts to obtain a waiver of claims that would have prevented the employee from recovering under Title VII in exchange for severance pay was not a per se act of retaliation.

The circumstances in Henry involved an employee who complained that he was being discriminated against on the basis of religious discrimination.  The employee filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on May 18, 2011.  On May 31, 2011, the employee received a notice that he was being terminated, effective July 31, 2011, which was the date the facility in which he worked would permanently close.  Apparently, the decision to terminate the employee had been made in January 2011.  Based on these facts, it would appear that the employer did not retaliate against the employee for filing an EEOC charge because the decision was made prior to his filing the charge.  However, the terms of his separation were problematic to the court.  According to the severance package the employee was offered, he was required to “waive [his] right to recover monetary or other damages” stemming from his Title VII claim.

Ultimately, the court was unable to substantiate the employee’s claim of religious discrimination.  The court, however, denied the employee’s motion to dismiss the retaliation claim, and further ordered the employer to show cause why its severance offer, which was contingent upon the waiver of claims, should not be deemed per se retaliatory.  The court reasoned that although it would not find every waiver in exchange for severance to constitute retaliation, in this case it appeared that the employee would have been entitled to the severance under the employer’s plan without the need to execute a release, and that the only reason the employer sought the release  was because of the employee’s claim of discrimination.  According to the court, the severance pay under the plan was “part and parcel of the employment relationship,” and by conditioning the employee’s entitlement to severance on the execution of a waiver, the employer basically deprived the employee of a benefit he would have gotten without the need to execute the waiver.  Simply stated, the plan entitled the employee to the severance regardless of whether he signed the release.  By requiring him to execute a waiver for those very benefits, it appears that the employee may have suffered retaliation.

A key aspect of an employer’s defense in an employment discrimination case involves the proffer of a legitimate non-discriminatory reason for the adverse action claimed to be discriminatory by the employee.  While employers defending a discrimination case are not required to prove  that they acted legitimately, they are required to provide some proof that the employee was terminated for a specific non-discriminatory reason.

On December 16, 2013, the United States Court of Appeals for the Second Circuit (which covers New York, Vermont and Connecticut) considered the dismissal by the United States District Court for the Southern District of New York of a plaintiff’s several employment discrimination, retaliation, and hostile work environment claims in violation of federal and New York State law.  Although the Second Circuit upheld the dismissal of the discrimination and hostile work environment claims, the court vacated the District Court’s dismissal of the retaliation claim, stating that the record contained sufficient evidence for the plaintiff to withstand summary judgment.

In Kwan v. The Andalex Group, LLC (U.S. Court of Appeals for the Second Circuit, No.12-2493-cv, decided: December 16, 2013) , the plaintiff, a former Vice President of Acquisitions, claimed, among other things, that she was terminated in retaliation for complaining to the Director of Human Resources three weeks prior to her termination that she believed she was being discriminated against on the basis of gender with respect to her salary raises and bonuses.  Following the plaintiff’s termination, she filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), and the employer submitted a “position statement” in support of its defense.  Among other things the position statement stated that plaintiff was terminated because the company’s “business focus to international investments made the plaintiff’s skill set obsolete.”  However, the employer took a different position in court.  Indeed, the court noted that the employer’s “explanations for the plaintiff’s firing have. . . evolved over time.”  During depositions taken during the litigation, the employer alleged that the “plaintiff’s poor performance and bad behavior were the reasons for the termination.”  Yet, despite that the employer claimed that it was the plaintiff’s performance and behavior that led to the decision to terminate her, the court noted that “[a]ny fair reading of Andalex’s Position Statement to the EEOC indicates that Andalex claimed that Kwan was fired primarily because its business focus had changed.”  The shifting reason for the plaintiff’s termination casted doubt on the employer’s veracity concerning why the plaintiff was, in fact, fired.

On June 24, 2013, the United States Supreme Court decided University of Texas Southwestern Medical Center v. Nassar, in which the Court held that claims of retaliation must be proved using a “but for” standard as opposed to the seemingly lower “motivating factor” standard of causation.

The plaintiff had argued that in order to prevail on his claim of retaliation, he had to show that his engaging in protected activity was a motivating factor in his termination. The motivating factor standard, which applies to claims of status discrimination (e.g., sex, race, religion, national origin and disability), provides that to prevail on an employment discrimination claim, an employee need only “show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives for the decision.”

Based upon its review of the language of Title VII, the Supreme Court stated that the motivating factor standard did not apply to claims of retaliation, and that, instead, traditional principles of but-for causation applied.

In Gail Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., et al., 12-3489-cv, April 26, 2013, the plaintiff filed claims under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, alleging that an affair that one of her brothers had with another worker in their family business created a sexually hostile work environment, and that following her complaints, both of her brothers retaliated against her. The lower court dismissed both claims, and the plaintiff appealed only the dismissal of her retaliation claims.

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In 2005, the New York City Council amended the New York City Human Rights Law (“NYCHRL”) to make it clear that courts should construe New York City’s anti-discrimination protections more broadly than federal discrimination protections. Under the Local Civil Rights Restoration Act of 2005, the New York City Council alerted courts to their mistaken assumption that interpretations of the NYCHRL should be coextensive with federal and New York State discrimination law. Consequently, courts began construing the NYCHRL much more broadly and in favor of discrimination claimants. Now, the Second Circuit Court of Appeals (which covers New York, Connecticut and Vermont) has confirmed that the NYCHRL is broader in its protections and application.
In Mihalik v. Credit Agricole Cheuvreaux North America Inc. (11-3361-cv) (April 26, 2013) , the Second Circuit reversed a grant of summary judgment in favor of the employer on plaintiff’s sexual discrimination, sexual harassment, and retaliation claims. Specifically, the Second Circuit found that the District Court had applied federal standards in determining whether the employer was liable under the NYCHRL
The court summed up its conclusions as follows:

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Today, the U.S. Department of Labor Wage and Hour Division released three new fact sheets addressing the topic of retaliation under the Fair Labor Standards Act (FLSA), Family Medical Leave Act (FMLA), and Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

Each of these statutes contain provisions prohibiting an employer from retaliating against an employee for asserting rights covered by each of the statutes.

Fact Sheet #77A, Prohibiting Retaliation Under the FLSA, provides general information concerning the FLSA’s prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation and is available on the WHD website at

A former Long Island, New York police lieutenant was awarded $350,000 in damages by a jury in her lawsuit filed in the United States District Court for the Eastern District of New York. Sherry Hines was employed by the Village of Hempstead, New York, as a police officer. During her employment, she filed sex and race discrimination complaints. Ultimately, she was passed over for promotions and ultimately demoted to a desk job in retaliation for her complaints.
The Eastern District of New York jury found in her favor after a four day trial, which concluded on October 6, 2011.

The federal Fair Labor Standards Act (“FLSA”) requires that employers pay employees at least the minimum wage for each hour worked, and 1-1/2 times their regular hourly rate for hours worked in excess of 40 in any workweek. In addition, the FLSA contains anti-retaliation protections to employees who make complaints of minimum wage and overtime violations.

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A lawsuit filed by the United States Equal Employment Opportunity Commission (“EEOC”) on September 30th, in federal court, alleges that Fox News retaliated against reporter Catherine Herridge, who had previously complained of sex and age discrimination at the cable news network.

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Today, Governor David Patterson signed into law, the New York Domestic Workers Bill of Rights, which reflects the first sweeping domestic workers’ rights legislation in the nation.
Among other things, the New York law provides for overtime pay to domestic workers, and protection against workplace discrimination and harassment based upon race, gender, sexual orientation, national origin, disability, marital status and domestic victim status. The legislation specifically addresses sexual harassment, which is cited as a major problem for domestic workers in New York.

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