- A jury has concluded the City of Lincoln, Nebraska, illegally retaliated against a firefighter, Troy Hurd, who protested the harassment of a Kurdish female coworker (Hurd v. City of Lincoln, No 4:16CV3029 (D. Neb. Feb. 19, 2019)).
- After complaining about the harassment to his supervisor, Hurd alleged he was, over the course of several years, removed from his training position, falsely accused of sending obscene text messages, formally reprimanded, moved to a different shift and passed over for a promotion.
- A jury concluded that the city had not proved it would have imposed the materially adverse employment actions regardless of Hurd's protected activity and awarded him roughly $1.2 million in back wages and damages.
The law is clear that retaliation alone is actionable — even if there is no underlying discrimination or harassment — as long as the employee in question had a reasonable belief that the law was being violated. According to the U.S. Equal Employment Opportunity Commission, it is illegal for employers to retaliate against applicants or employees for:
- Filing or being a witness in an EEO charge, complaint, investigation, or lawsuit;
- Communicating with a supervisor or manager about employment discrimination, including harassment;
- Answering questions during an employer investigation of alleged harassment;
- Refusing to follow orders that would result in discrimination;
- Resisting sexual advances, or intervening to protect others;
- Requesting accommodation of a disability or for a religious practice; or
- Asking managers or co-workers about salary information to uncover potentially discriminatory wages.
Of course, engaging in protected activity does not shield an employee from future discipline or discharge, but employers can impose discipline only if they are motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences, according to the commission.
But what's considered an "adverse" employment action or decision? The definition is broad. A shift change can qualify, for example, or inconsistent discipline; the firefighter in Hurd, for example, allegedly received a written reprimand for a log book error while the other employees involved received only verbal reprimands. Additionally, "opposition" to illegal activity can take many forms, including something as simple as a remark to a manager.
Training is crucial to ensure that managers don't retaliate, either deliberately or inadvertently, against employees who complain about potential illegal activity. Additionally, to prevent even the appearance of retaliation, experts recommend that employers have a solid paper trail before disciplining or terminating an employee who has engaged in protected activity — especially if the adverse action occurs close in time to the protected activity.