As this blog has discussed before — but it definitely bears repeating again — when an employer retaliates against an employee for pursuing a claim of discrimination or harassment, that employee can secure a favorable judgment on retaliation even if the discrimination or harassment claim ultimately fails. To find out what legal options most sense for your situation, reach out to a skilled New Jersey workplace retaliation lawyer.
A recent federal discrimination and retaliation case is a good illustration of two things. One is the retaliation-related issue discussed above. The other is a reminder of the evidentiary elements it takes to succeed on a race discrimination claim.
The plaintiff, F.S., was a Black woman and a managerial employee for the state Superior Court in Camden, having started there in 2013. Problems allegedly arose quickly and the manager filed a discrimination suit under the Law Against Discrimination in 2014.
Two years later, the manager sued again — this time alleging federal Title VII violations in the form of race discrimination and retaliation.
The Essential Details of a Viable Race Discrimination Claim
The bad news for the manager was that the courts deemed her claim for race discrimination to be inadequate. In any race discrimination scenario, it’s critical to connect the bad acts you asserted to race-based animus. If your complaint generally alleges bad acts that are potentially consistent with discriminatory motives, but also potentially consistent with nondiscriminatory motives, then you don’t have enough.
That was a problem in this employee’s pleadings. The appeals court noted that, while the manager “alleged that the Supervisors disciplined her and acted in ways that caused her to feel insulted and embarrassed,” she never took the next step of alleging that the supervisors’ mistreatment of her occurred because of her race. Without that crucial element, the employee’s race discrimination claim couldn’t survive.
Additionally, if your race discrimination claim asserts that your employer treated you differently than other colleagues of different races, you have to give the court some specifics. (In other words, you can’t just say generally that your supervisors treated you, a Black person, less favorably than your White coworkers.)
Your pleading needs certain details, such as a colleague (or colleagues) who represented what the law calls a “comparator.” A comparator, in this context, is an employee who is similarly situated to you in all relevant ways except that they are not a member of the protected class that serves as the foundation of your discrimination claim. (For example, if you’re a woman advancing a sex discrimination case, you need comparators who are similarly situated to you except that they are not women.)
You also need to allege ways in which the employer treated your comparator more favorably or treated you comparatively less favorably.
F.S.’s case fell short on these fronts. The appeals court pointed out that she “failed to identify relevant comparators, failed to allege differential treatment for the same conduct, or failed to show that her treatment was less favorable than that of other employees.”
Protected Activities, Causation, Temporal Proximity, and Retaliation
The good news for the manager was the appeals court reached a different conclusion regarding her retaliation claim. When it comes to retaliation claims, you have to allege that you engaged in some form of “protected activity.” This can be anything from speaking out internally against improper conduct to testifying as part of a colleague’s harassment case to helping a coworker fill out discrimination claim forms to launching your own discrimination complaint, among other things. For your discrimination complaint to be the required “protected activity” in a potentially successful retaliation claim, the discrimination claim need not have been successful. You need only have brought it in good faith.
As part of the manager’s 2014 discrimination case, the trial judge issued a mid-April 2015 ruling permitting F.S. “to produce documentary evidence of her Supervisors’ discrimination.” By April 21, a supervisor had filed a complaint against her and, on May 7, the employer suspended her without pay.
That, the appeals court decided, was enough. One of the more common ways to establish that your protected activity caused the retaliatory action you alleged is to link the two together in terms of closeness of time, or what the law calls “temporal proximity.” In the manager’s case, the supervisor’s launching of an internal complaint against her within a matter of days (and the employer’s imposition of an unpaid suspension in less than four weeks) of the court’s evidentiary ruling was a sufficiently small window of time to satisfy the causation element.
Speaking out in good faith against conduct you believe to be discriminatory or harassing shouldn’t come at a cost to your career, even if the conduct you opposed ultimately wasn’t judged to be a violation of the law. If your employer metes out that kind of improper punishment, the experienced New Jersey employment retaliation attorneys at Phillips & Associates are here to help. Our team has the knowledge and the skills to provide you and your case with the effective representation you deserve. To find out more, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.