Q+A - Discrimination, Harassment and Retaliation

By far the most common questions our firm receive involve discrimination, harassment and retaliation. Many people believe that discrimination, harassment and retaliation in the workplace are simply and wholly illegal and that if they have been singled out in any way, they have an actionable legal claim. It’s easy to understand where this misconception stems from, since often times news stories about lawsuits and big verdicts and settlements state that the plaintiff alleges discrimination without explaining the legal underpinnings of these claims. The following questions and answers are intended as a general guide only, and we at Pelton & Associates are always happy to answer any and all questions you may have about these issues and your own workplace experiences.

Q: Who is protected by anti-discrimination and anti-retaliation laws?

A: In the employment context, usually only regular employees are protected.

Most employment laws protect only regular employees but exempt workers such as independent contractors and interns, although some states have passed laws to expand coverage beyond regular employees. This can be further complicated when workers sign up with a referral agency and are assigned to staff another company, or find themselves in other joint employer situations.

However, the fact that a worker is classified as an independent contractor or temporary worker does not mean that they are unprotected. These classifications are often overbroad and incorrect. For this reason, it is important to consult with an attorney to determine whether you really are a regular employee, independent contractor or other type of employee.

Q: Are all forms of discrimination and retaliation prohibited by law?

A: No. Only discrimination based on “protected categories” and retaliation based on “protected activities” are prohibited.

Discrimination and harassment are prohibited only to the extent that such treatment is based on the employee’s membership in certain protected categories. The most common such categories are: race, gender, religion, age and disability. In some instances, pregnancy is included under the aegis of gender or disability. Some states and municipalities have expanded protections based on marital status, sexual orientation, gender expression, veterans status and genetic information. A simple definition of discrimination is adverse treatment based on one or more protected characteristics.

Retaliation is prohibited only when it is based on an employee’s participation in certain protected activities. The most common protected activities are certain types of whistleblowing that are protected by federal and state law, including complaints or reports of companies defrauding the government, engaging in tax fraud or other fraud related to government programs, or defrauding consumers. There are certain exceptions for public employees. Complaints about a company’s internal workings are generally not protected if the complaint is not linked to specific types of government or consumer fraud.

Q: What makes a certain action ‘discrimination’ or ‘retaliation’?

A: Discrimination and retaliation have two components: adverse treatment and improper motivation.

Adverse treatment is usually an action that materially affects job status: termination, demotion, failure to promote, or reduction of hours or wage. Changes that are not considered “material” may not be severe enough to rise to legal definition of adverse action; such changes may include transfers and disciplinary notes without consequence. However, “adverse treatment” is not necessarily limited to employment actions if such consequences are sufficiently severe as to deter a reasonable person from engaging in the protected activity at issue.

The second component is improper motivation: at least part of the reason for the adverse treatment must be a protected characteristic. In other words, a demotion based on race is illegal. A demotion based on personal animus is unfair but not illegal if there’s no illegal motivation for that animus. This is because 49 of the 50 states are “at-will employment” states, meaning that employees can be terminated for any reason or no reason at all, as long as it’s not illegal discrimination or retaliation. The fact that a person is singled out for poor treatment does not automatically mean that the person was subject to illegal discrimination if it’s not based on characteristics such as race, gender, age or disability. Improper motivation can be very difficult to prove if there is no record of comments reflecting illegal discrimination or widespread treatment throughout a company or department.

Q: I’ve heard of ‘Quid Pro Quo’ and hostile work environment claims. What’s the difference?

A: Quid Pro Quo means “something for something.” Hostile work environment is a pattern of discriminatory actions.

These types of claims generally, but not always, arise in the sexual harassment context. Sexual harassment is essentially a form of discrimination, although it is sometimes addressed separately from discrimination. Actions constituting sexual harassment generally fall into two categories: quid pro quo and hostile work environment.

Quid pro quo, or “something for something” harassment, occurs when job status is somehow tied to sexual or romantic requests, usually by a workplace superior: for example, if a boss threatens to fire a subordinate if she does not go on a date with him. This kind of discrimination is relatively rare in modern workplaces, since many businesses have made clear that such blatant discrimination will result in immediate termination.

The other is “hostile work environment,” where a workplace is made intolerable by certain kinds of sexual actions, which made include unwanted touching, display of pornographic images and lewd and offensive comments and conversations. Courts generally find that a stray comment or offensive joke is insufficient to constitute sexual harassment.

“Hostile work environment” claims can also be tied to other types of discrimination; a finding of hostile work environment generally requires extremely egregious, ongoing actions. Regardless of the type of discrimination at issue, “hostile work environment” claims are actionable only when the hostile actions are based on a protected category such as race, gender, age, religion or disability.

Q: If I’m not sure whether I’ve suffered discrimination or retaliation, what should I do?

A: Contact an attorney to discuss your employment situation.

Maybe you are reading this article, and it looks much more complicated than you thought. Maybe you are not sure what type of employee you are or whether the actions you’ve suffered constitute “adverse treatment” or whether your supervisor’s comments show an improper motivation.

That is understandable! As employment law attorneys, it is our job to know these laws, and the laws change as new legislation is passed and new cases are decided. Laws also vary between states, so information you have found about one set of employment laws may not apply to your situation. Before making any decisions about whether and how to pursue legal action, you should always talk with a knowledgeable, experienced attorney who can look at your situation with an objective eye.

At Pelton & Associates, we are always happy to talk with people who aren’t sure whether they have a claim, and the consultation is always free!