Retaliation for Reporting Discrimination in Massachusetts
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Reporting discrimination in the workplace is a protected activity under the anti-discrimination laws. Even if you are wrong about the discrimination, so long as you had a good faith basis for making your complaint or report, it is unlawful for your employer to retaliate against you for that activity.
Protected ActivityUnder both the state and federal anti-discrimination laws, protected activity includes participating in an EEOC or MCAD proceeding, or "opposing" discrimination in the workplace. "Opposing" discrimination could include reporting it to management or human resources, assisting another employee in making a complaint of discrimination, or refusing to participate in a discriminatory act.
Most commonly, the protected activity involves either an actual filing of a charge of discrimination or an internal report to an employer. |
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Reporting Discrimination in the Workplace: Good Faith Belief
Reporting or opposing discrimination is protected activity as long as you have a "reasonable, good faith belief' that the conduct is unlawful. But what does that mean?
A reasonable belief has some basis in fact. One example given by the EEOC is this: a female employee with similar qualifications raises a complaint that a male was promoted instead of her, and that this was discriminatory. According to the EEOC, this is a reasonable good faith complaint.
In contrast, a female employee without a required license or certification is passed over for a male who has the required license or certification. In the EEOC example, this is not a reasonable complaint because there is objective evidence of the non-discriminatory reason for the promotion decision.
Of course, there may be other facts that would make the second complaint reasonable after all. For example if the license or certification had not been uniformly required for that position in the past, or if male candidates had historically been given the position without the license or certification. Or if there had been explicit statements made in the promotion process that would support a discrimination claim.
"Good faith" is equally hard to define precisely, and is also very fact-dependent. An example of bad faith could be an employee who raises a complaint that is not grounded in any facts and does so only after being disciplined or warned about legitimate poor performance.
A reasonable belief has some basis in fact. One example given by the EEOC is this: a female employee with similar qualifications raises a complaint that a male was promoted instead of her, and that this was discriminatory. According to the EEOC, this is a reasonable good faith complaint.
In contrast, a female employee without a required license or certification is passed over for a male who has the required license or certification. In the EEOC example, this is not a reasonable complaint because there is objective evidence of the non-discriminatory reason for the promotion decision.
Of course, there may be other facts that would make the second complaint reasonable after all. For example if the license or certification had not been uniformly required for that position in the past, or if male candidates had historically been given the position without the license or certification. Or if there had been explicit statements made in the promotion process that would support a discrimination claim.
"Good faith" is equally hard to define precisely, and is also very fact-dependent. An example of bad faith could be an employee who raises a complaint that is not grounded in any facts and does so only after being disciplined or warned about legitimate poor performance.
What is Retaliation?
Retaliation is a materially adverse employment action taken against you that is because of your report of discrimination.
Not everything that feels negative is a "materially adverse employment action." A negative review alone, for example, is not usually actionable. Nor is a general sense of ill-will in the workplace. Taken together, over time, if these two things result in a termination or demotion, they may fit into a larger picture of retaliation, but you cannot take action on them immediately
Causation is the next piece of the puzzle. Just like with a discrimination case, the employer will present a legitimate, non-retaliatory motive for its actions. Poor performance, strained relationships with a manager, or disciplinary infractions are just a few of the many we have seen. You have the opportunity then to try to prove that these reasons were pretextual, or just a cover for the true retaliatory motive.
Proving pretext is also very fact-specific, and you should consult with an experienced attorney to give you advice about how likely it is you could prove the causal connection between the protected activity and the adverse employment action.
Not everything that feels negative is a "materially adverse employment action." A negative review alone, for example, is not usually actionable. Nor is a general sense of ill-will in the workplace. Taken together, over time, if these two things result in a termination or demotion, they may fit into a larger picture of retaliation, but you cannot take action on them immediately
Causation is the next piece of the puzzle. Just like with a discrimination case, the employer will present a legitimate, non-retaliatory motive for its actions. Poor performance, strained relationships with a manager, or disciplinary infractions are just a few of the many we have seen. You have the opportunity then to try to prove that these reasons were pretextual, or just a cover for the true retaliatory motive.
Proving pretext is also very fact-specific, and you should consult with an experienced attorney to give you advice about how likely it is you could prove the causal connection between the protected activity and the adverse employment action.
Reporting Discrimination: What You Need to Know
The first thing you should know is if your employer has a defined process for making this kind of report. A good place to start is your Human Resources department, if you have one. If there is a policy, you should try to follow it as best you can. This will be the most effective way to put your employer on notice that there might be a problem. This is not just a legal ploy- in many cases employers will respond appropriately and address the issue.
The second thing you should know is that your report should be documented in some way- even if it is just an email- and it should clearly identify what it is you think is discrimination. It may feel a little awkward, but it is important so that the employer clearly knows you are identifying potential discrimination and not a garden variety workplace conflict. For example, if you are a person of color and believe you are being treated unfairly by a white supervisor, do not assume that everyone reading your report will understand you to be talking about discrimination if all you talk about is the behavior and not the potential link to racial discrimination.
Finally, you should know that even though retaliation is unlawful, it sometimes happens. This should not stop you from reporting unlawful behavior, but it may be a good reason to consult an employment lawyer to understand whether what you are experiencing is unlawful discrimination.
The second thing you should know is that your report should be documented in some way- even if it is just an email- and it should clearly identify what it is you think is discrimination. It may feel a little awkward, but it is important so that the employer clearly knows you are identifying potential discrimination and not a garden variety workplace conflict. For example, if you are a person of color and believe you are being treated unfairly by a white supervisor, do not assume that everyone reading your report will understand you to be talking about discrimination if all you talk about is the behavior and not the potential link to racial discrimination.
Finally, you should know that even though retaliation is unlawful, it sometimes happens. This should not stop you from reporting unlawful behavior, but it may be a good reason to consult an employment lawyer to understand whether what you are experiencing is unlawful discrimination.
How Our Employment Lawyers Can Help
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We can help you understand whether what you are experiencing at work is unlawful, and help you protect your rights if you have been retaliated against for reporting it. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
