Editor’s Note: This is the first in a series of articles in which Curt Varone will address questions on important fire service legal issues. If you would like to submit a question, please email Shannon Pieper at firstname.lastname@example.org.
Today’s question deals with a common source of confusion in employment law cases:
When I see fire department lawsuits involving accusations of discrimination, they often also allege retaliation. What’s the difference? Does retaliation make a discrimination case stronger?
Discrimination refers to the act of drawing a distinction between two or more things. Distinctions, and thus discrimination, are an inevitable part of our everyday life. We discriminate when we decide what we will eat, who will cut our hair, and even who we allow to pull out in front of us in traffic. Examinations in school purposefully discriminate. The important question to consider: on what grounds is the discrimination taking place?
Under our laws (federal, state and in many cases local), certain types of discrimination have been made illegal. For example, an employer is prohibited from discriminating against an employee or job applicant on account of the person’s race, religion, national origin, sex, disability or age, to name a few. Illegal discrimination also extends to those providing public accommodations such as housing, services such as restaurants, and other business activities.
In the employment context, an employer is not only prohibited from engaging in illegal discrimination, but also required to provide a workplace free from illegal discrimination. In this regard, the employer is under an obligation to protect employees from colleagues who may create a hostile work environment based upon a protected classification. This is where an employer’s policies and training play an essential role.
As part of the employer’s obligation to provide a workplace free from illegal discrimination, employers must provide procedures employees can use to report or object to perceived discriminatory conduct. Once an employee files a complaint about perceived illegal discrimination, the employer must investigate those claims and is prohibited from retaliating against the complaining employee. Reductions in pay, demotions, transfers or other adverse job actions that occur after an employee has filed a discrimination complaint create the appearance of retaliation. In addition, hostile conduct by fellow employees following a complaint similarly creates the appearance of retaliation.
When retaliation occurs following a discrimination complaint, it is considered to be a separate act of discrimination. While this may seem to be self-evident and of minor import, the distinction between discrimination and retaliation is quite profound.
Proving discrimination can be difficult. Discrimination claims require proof that an employer treated an employee differently because of a protected classification or proof that an employer was aware colleagues were creating a hostile work environment and unreasonably failed to address it. It is rare that an employer or even colleagues are so careless as to leave proof positive that their actions were intentionally discriminatory. As a result, discrimination suits often hinge on differing explanations for why someone was disciplined, demoted, transferred or treated in an adverse way.
On the other hand, proof of retaliation is relatively simple. All that is required is proof that a person complained about discrimination and an adverse job action or act of workplace hostility occurred shortly thereafter. Direct proof of retaliatory intent is not necessary because it can be inferred from the timing of the complaint and the adverse action.
As a result, retaliation lawsuits are considerably easier to prove than discrimination claims. Retaliation claims are often considered to be a slam dunk for the employee’s attorney, even when the attorney is unable to prove that discrimination occurred to justify the original complaint.