In Thompson v. North American Stainless, LP, the Supreme Court held that an employee who claims he was fired in retaliation for his fiancé’s complaint of sex harassment had an actionable retaliation claim under Title VII. According to the Supreme Court’s 2010 decision, it is an unlawful employment practice under Title VII to terminate an employee’s “close family member” in retaliation for her engaging in protected activity, such as filing a charge of discrimination with the EEOC. This type of claim has been characterized as retaliation by association, since the person being retaliated against is closely associated to the person who engaged in protected EEO activity. Often employers retaliated against the person who engaged in protected activity, but in Thompson a woman filed a sex discrimination charge with the EEOC and three weeks later the employer terminated the woman’s fiancé, who also was employed by the company. The fiancé filed his own EEOC charge and filed a lawsuit, alleging that his termination was in retaliation for his fiancé’s EEOC charge. The trial court dismissed the fiancé’s case, holding that there was no cause of action under Title VII for retaliation against associated third-parties. That decision was upheld by the Sixth Circuit’s en banc decision, but the Supreme Court reversed, reasoning that Title VII’s anti-retaliation provisions were intended to protect against any employer action that could dissuade a reasonable worker from making or supporting a charge of discrimination. The Court emphasized that this is an objective standard and stated that it was “obvious” a worker might be dissuaded from making or supporting a complaint of discrimination if she knew that her fiancé might be terminated in retaliation for making or supporting a complaint of discrimination. The Court warned that retaliation against a mere acquaintance would not meet this standard but declined to identify which types of relationships would. If the person retaliated against was not a close family member, but say just “a friend”, then the viability of the claim would depend on whether the evidence showed that the plaintiff was in the “zone of interest.”

If you have been retaliated against by your employer for engaging in EEO protected activity, contact Denver Employment Attorney Gregory A. Hall at 303-320-0584.

Remedies For Employment Discrimination

Whenever discrimination is found, the goal of the law is to put the victim of discrimination in the same position (or nearly the same) that he or she would have been if the discrimination had never occurred. The types of relief will depend upon the discriminatory action and the effect it had on the victim. For example, if someone is not selected for a job or a promotion because of discrimination, the remedy may include placement in the job and/or back pay and benefits the person would have received. The employer also will be required to stop any discriminatory practices and take steps to prevent discrimination in the future. A victim of discrimination also may be able to recover attorney’s fees, expert witness fees, and court costs.

Remedies May Include Compensatory & Punitive Damages

Compensatory and punitive damages may be awarded in cases involving intentional discrimination based on a person’s race, color, national origin, sex (including pregnancy), religion, disability, or genetic information. Compensatory damages pay victims for out-of-pocket expenses caused by the discrimination (such as costs associated with a job search or medical expenses) and compensate them for any emotional harm suffered (such as mental anguish, inconvenience, or loss of enjoyment of life). Punitive damages may be awarded to punish an employer who has committed an especially malicious or reckless act of discrimination.

Limits On Compensatory & Punitive Damages

There are limits on the amount of compensatory and punitive damages a person can recover. These limits vary depending on the size of the employer:

• For employers with 15-100 employees, the limit is $50,000.
• For employers with 101-200 employees, the limit is $100,000.
• For employers with 201-500 employees, the limit is $200,000.
• For employers with more than 500 employees, the limit is $300,000.

Age Or Sex Discrimination & Liquidated Damages

In cases involving intentional age discrimination, or in cases involving intentional sex-based wage discrimination under the Equal Pay Act, victims cannot recover either compensatory or punitive damages, but may be entitled to “liquidated damages.” Liquidated damages may be awarded to punish an especially malicious or reckless act of discrimination. The amount of liquidated damages that may be awarded is equal to the amount of back pay awarded the victim.

If you need legal counsel, contact Denver Civil Rights Attorney Gregory A. Hall at  http://denvercivilrightslawyer.com to set up an appointment to discuss your case. 

Gregory A. Hall
A Colorado Civil Rights Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

A plaintiff establishes a prima facie case of racial discrimination based upon a hostile work environment by showing that (1) the plaintiff was a member of a protected class; (2) the plaintiff was subjected to unwelcome harassment; (3) the harassment was race-based; (4) the harassment unreasonably interfered with the plaintiff’s work performance by creating an environment that was intimidating, hostile, or offensive; and (5) the employer was liable for the harassing conduct. Clay v. United Parcel Serv., Inc., 501 F.3d 695, 706 (6th Cir.2007) (citing Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir.1999)).  To satisfy the fourth element, “unreasonable interference,” a plaintiff “must present evidence showing that under the ‘totality of the circumstances’ the harassment was ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ “ Id. at 707 (quoting Williams v. Gen. Motors Corp., 187 F.3d 553, 560, 562 (6th Cir.1999) (in turn quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotation marks omitted))). To satisfy the fifth element, “employer liability,” a plaintiff must demonstrate “that [the plaintiff's] employer ‘tolerated or condoned the [alleged conduct]’ or ‘that the employer knew or should have known of the alleged conduct and failed to take prompt remedial action.’ “ Jackson v. Quanex Corp., 191 F.3d 647, 659 (6th Cir.1999) (quoting Davis v. Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir.1988)).

Severity and pervasiveness are evaluated according to the totality of the circumstances, considering such factors as “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); see also Harsco Corp. v. Renner, 475 F.3d 1179, 1187 (10th Cir.2007) (listing factors to be considered in determining whether environment is hostile or abusive).  “Facially neutral abusive conduct can support a finding of […] animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly [racially] discriminatory conduct.”  O’Shea v. Yellow Tech. Serv’s., 185 F.3d 1093, 1097 (10th Cir.1999).  “A plaintiff cannot meet this burden by demonstrating a few isolated incidents of racial enmity or sporadic racial slurs.”  Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir.2005). (quotations omitted).

The information on this blog or website is not legal advice. Contact Mr. Hall to set up an appointment to evaluate your case.  Denver EEO Attorney: http://www.denvereeolawyer.com

Gregory A. Hall
A Colorado Civil Rights Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

When a federal employee believes s/he has been the subject of discrimination or retaliation, s/he must go through an administrative process in an attempt to resolve the situation. To start the EEO complaint process the employee must contact the Agency’s EEO counselor within 45 days of the last discriminatory or retaliatory incident. (more…)

DENVER EEO ATTORNEY REPRESENTING FEDERAL EMPLOYEES

Pursuant to the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-16, persons have the right to equal federal employment opportunities regardless of their race, color, sex, national origin, religion, age, disability, or prior EEO activity. This includes protection against illegal harassment.

45 Days to File a Discrimination Claim

The federal government’s EEO process differs sharply from the private sector’s. See the EEOC’s website for more information at http://www.eeoc.gov/facts/fs-fed.html

A federal employee has only 45 calendar days to contact a designated EEO counselor at their agency to file an informal complaint of discrimination from the date of discrimination. The regulations provide that initial EEO counseling is to be completed within 30 days unless the employee agrees to an extension of time or agrees to submit their complaint to an agency alternative dispute resolution process, which will extend the EEO counseling process for an additional 60 days. If the complaint isn’t resolved within that time, then the employee will be issued a written notice of the right to file a formal EEO complaint within 15 calendar days of receiving that notice.

Once a formal EEO complaint is filed, the employee’s agency will accept or dismiss the complaint, in whole or in part. If accepted, the agency will conduct an investigation into the accepted issues. The regulations provide that the investigation is to be completed within 180 calendar days from the date on which the formal complaint was filed. The agency investigation consists of some sort of fact-finding. At the conclusion of the investigation, the agency will issue a report of investigation that includes all the evidence gathered by the EEO investigator. The employee has three options:

1. request a hearing before an EEOC administrative judge;
2. have the employing agency issue a written final decision; or
3. opt out of the administrative process and file a civil action in federal district court

The employee may appeal the final agency decision (issued either after or instead of the EEOC hearing) to the EEOC headquarters in Washington, D.C. and may file their civil action in federal court at any time after the formal complaint has been pending for more than 180 days (even after the EEOC’s final appellate decision is issued).

Since 1995 Attorney Gregory Hall has represented federal employees before the EEOC. He has represented clients throughout the EEO process, from filing complaints with the EEO counselor to filing complaints in Federal District Court. The information on this blog or website is not legal advice. Contact Mr. Hall to set up an appointment to evaluate your case.

Denver EEO Attorney: http://www.denvereeolawyer.com

Gregory A. Hall
A Colorado Civil Rights Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

DISCRIMINATION AND HOSTILE WORK ENVIRONMENT

Title VII, the ADA, the ADEA, and the PDA protect employees from unlawful discrimination and harassment based on:

• Age
• Race, color or national origin
• Gender or pregnancy
• Religious affiliation
• Marital status
• Disability

Employers with 15 or more employees (20 or more for age discrimination), employment agencies, unions, local, state and federal agencies must obey these laws.

Some race claims can also be filed under 42 U.S.C. § 1981.

RETALIATION

Title VII makes it is illegal for employers to retaliate against employees who:

• Engage in protected activity by opposing discrimination in the workplace
• Engage in protected activity by participating in the discrimination process

Some retaliatory claims can also be filed under 42 U.S.C. § 1981.

FAMILY AND MEDICAL LEAVE ACT (FMLA)

An eligible employee may take up to 12 weeks of leave per year without the fear of losing his or her job for several reasons, including: (i) To care for a newly born baby or adopted child; (ii) To obtain treatment for a serious illness or injury, or to recover from a serious illness or injury; (iii) To provide care to a close family member who has a serious ailment or health condition.

There are other laws that protect:

• Whistleblowers
• People who assert their rights for overtime pay
• People who file a claim for worker’s compensation
• People who participate in other lawful activities not related to work, such as political activity

If you believe you have been discriminated against, retaliated against, or had other civil rights violated, you should consult with a qualified civil rights attorney so that you can not only inform yourself of your rights, but also of your obligations under the law. Many times employees compromise their claims against the employer because they do not understand their obligations under the law.

EXHAUSTATION OF ADMINISTRATIVE REMEDIES

In most circumstances, any person who intends to file a lawsuit based on discrimination must first exhaust their administrative remedies by filing a charge of discrimination with Equal Employment Opportunity Commission (EEOC) the Colorado Civil Rights Division (CCRD). A person should not delay in filing the charge, since if the discrimination occurred in Colorado, the charge must be filed within 300 days from the date of when the discrimination occurred. In some states the time for filing a charge is only 180 days. Federal employees are required to contact the proper EEO Counselor within 45 days.

CHARGE OF DISCRIMINATION

Information about filing a charge of discrimination can be found at http://eeoc.gov. Before filing a charge, or contacting an EEO Counselor, a person will be well advised to first consult with a qualified civil rights attorney if time allows. Keep in mind that employment law is highly specialized, so make sure any lawyer you consult with or retain has the necessary expertise.

If you need legal counsel, contact Denver Civil Rights Attorney Gregory A. Hall at http://denvertitleviilawyer.com

Gregory A. Hall
A Colorado Civil Rights Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

Crawford v. Metropolitan Government of Nashville and Davidson Cty., No. 06-1595 (U.S. Supreme Court, Jan. 26, 2009)

Case Summary: In response to questions from an official of respondent local government (Metro) during an internal investigation into rumors of sexual harassment by the Metro School District employee relations director (Hughes), petitioner Crawford, a 30-year employee, reported that Hughes had sexually harassed her. Metro took no action against Hughes, but soon fired Crawford, alleging embezzlement. She filed suit under Title VII of the Civil Rights Act of 1964, claiming that Metro was retaliating for her report of Hughes’s behavior, in violation of 42 U. S. C. §2000e–3(a), which makes it unlawful “for an employer to discriminate against any … employe[e]” who (1) “has opposed any practice made an unlawful employment practice by this subchapter” (opposition clause), or (2) “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter” (participation clause). The court granted Metro summary judgment, and the Sixth Circuit affirmed, holding that the opposition clause demanded “active, consistent” opposing activities, whereas Crawford had not initiated any complaint prior to the investigation, and finding that the participation clause did not cover Metro’s internal investigation because it was not conducted pursuant to a Title VII charge pending with the Equal Employment Opportunity Commission.

Held: The antiretaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. Because “oppose” is undefined by statute, it carries its ordinary dictionary meaning of resisting or contending against. Crawford’s statement is thus covered by the opposition clause, as an ostensibly disapproving account of Hughes’s sexually obnoxious behavior toward her. “Oppose” goes beyond “active, consistent” behavior in ordinary discourse, and may be used to speak of someone who has taken no action at all to advance a position beyond disclosing it. Thus, a person can “oppose” by responding to someone else’s questions just as surely as by provoking the discussion. Nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when asked a question. Metro unconvincingly argues for the Sixth Circuit’s active, consistent opposition rule, claiming that employers will be less likely to raise questions about possible discrimination if a retaliation charge is easy to raise when things go badly for an employee who responded to enquiries. Employers, however, have a strong inducement to ferret out and put a stop to discriminatory activity in their operations because Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 , and Faragher v. Boca Raton, 524 U. S. 775 , hold “[a]n employer … subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with … authority over the employee.” The Circuit’s rule could undermine the Ellerth-Faragher scheme, along with the statute’s “ ‘primary objective’ ” of “avoid[ing] harm” to employees, Faragher, supra, at 806, for if an employee reporting discrimination in answer to an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses. Because Crawford’s conduct is covered by the opposition clause, this Court does not reach her argument that the Sixth Circuit also misread the participation clause. Metro’s other defenses to the retaliation claim were never reached by the District Court, and thus remain open on remand. Pp. 3–8.

211 Fed. Appx. 373, reversed and remanded.

Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, and Breyer, JJ., joined. Alito, J., filed an opinion concurring in the judgment, in which Thomas, J., joined.

For legal counsel on your retaliation or civil rights case, contact Denver Civil Rights Attorney Gregory A. Hall at:

Gregory A. Hall
A Colorado Civil Rights Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com