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Employment Law FAQ

Can My Employer Fire Me for Making a Discrimination Claim?

Employers are prohibited from firing employees or otherwise retaliating against employees who file a claim of discrimination, participate in a discrimination proceeding or oppose a policy or action they believe is discriminatory in the workplace. Retaliation can include demoting an employee, giving an undeserved poor performance review, denying a raise or promotion or taking other adverse employment actions against an employee because of his or her involvement in an anti-discrimination claim.

Employees are protected from retaliation by clauses in Title VII, the Equal Pay Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act. To qualify for protection, the employee must be a covered individual, the activity engaged in by the employee must be protected and the employer must take adverse action against the employee for his or her involvement.

A covered individual is an employee who:

  • Opposed unlawful acts
  • Participated in discrimination proceedings, either as part of an internal process or as part of a lawsuit or other legal proceeding, including making the claim, offering testimony or serving as a witness
  • Requested accommodations from an employer for a disability or religious purpose

Additionally, those who have a close association with someone engaged in one of these protected activities also may have a claim against retaliation. For example, a spouse may bring a claim on behalf of his or her employee spouse.

The protected activities follow the definitions of covered individuals and include employee actions to oppose a practice he or she has a good faith, reasonable belief is discriminatory; employee participation in any type of discrimination proceeding; and employee requests for reasonable accommodations.

In order to be a protected activity, the opposition must be reasonable. The employee is not allowed to use unlawful means or violence to oppose the action. Speaking with the employer about the acts or threatening to or filing a complaint are acceptable forms of opposition.

The employer's actions against the employee for participating in a protected activity must be adverse. This could include acts such as:

  • Firing the employee
  • Refusing to hire a prospective employee
  • Demoting the employee
  • Refusing to provide the employee with a promotion or raise
  • Making unfounded charges against the employee
  • Giving the employee poor performance reviews or making negative references about the employee's job performance

The actions taken by the employer cannot be justified. For example, if the employer has a rational reason unrelated to the employee's protected activities for denying a promotion or raise, then the employee cannot seek protection from retaliation. The employer's actions will have to be examined on a case-by-case basis to determine if they were in fact adverse.

Whistleblowers are not covered by retaliation provisions in federal anti-discrimination laws. The retaliation claims must be related to a discrimination-related violation. Whistleblowers and others who bring attention to other types of violations by employers may be protected by other federal laws.

If you believe your employer retaliated against you for making a discrimination claim, opposing a discriminatory practice or policy or for requesting a reasonable accommodation, contact an experienced employment lawyer.

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