Retaliation is an unfortunate reality in too many workplaces. Employers too often respond to workers who boldly speak out or take action against discrimination or harassment with demotions, unpaid suspensions, and terminations. If you have been punished for speaking out, your employer may have violated federal (or New York’s) laws against retaliation. To learn about your case and how to pursue it, get advice from an experienced New York employment retaliation lawyer.
To advance a prima facie claim of retaliation, you need to demonstrate three crucial things: (2) engagement in a “protected activity,” (2) an adverse employment action, and (3) a “causal connection” between the protected activity and the adverse action. Meeting this prima facie requirement is critical to defeat your employer’s motion for summary judgment and take your case to trial.
A recent case illustrates an example of a clear causal connection. While the case did not occur in New York, it involved issues relevant to New Yorkers, including federal race discrimination and retaliation.
Allegedly, a dental practice’s director made offensive jokes about donning blackface to join the racial justice protests going on at that time (June 2020) in the aftermath of the death of George Floyd. The director also allegedly told an employee that “he was okay with her so long as she was not a part of Antifa or Black Lives Matter.”
A dental assistant who witnessed the jokes told two managers that the director’s comments made her uncomfortable. After the practice’s CEO learned of the assistant’s complaints, the employer placed the assistant on unpaid administrative leave and later fired her.
The Elements of Title VII Retaliation
In a retaliation lawsuit, “protected activity” can encompass many things. It could mean a formal act like suing in civil court or filing a written complaint with the EEOC. It can also include more informal actions, such as verbally expressing concern to a supervisor about discrimination or harassment.
Many varieties of punishments can establish the adverse action element, ranging from obvious things like termination to subtle punishments like a purportedly lateral transfer to a less prestigious role with fewer opportunities for advancement.
The law allows workers to demonstrate a causal connection in numerous ways. One of the more common methods is to show that the protected activity and the adverse were linked by a closeness of time, which the law calls “temporal proximity.”
'Temporal Proximity' Has No Bright-Line Standard
An important thing to know about temporal proximity is that it is not black-and-white. Federal law does not say, for example, that all gaps of 90 days or less satisfy temporal proximity while everything 91 days or more is too remote. Instead, federal case law dictates that the courts consider each allegation on a case-by-case basis based on each alleged instance's specific, individual facts.
This creates a circumstance where the gaps in many cases may fall into the “it depends” range, where success requires demonstrating that the other facts of your case indicate that the protected activity and the punishment were closely linked enough.
The dental assistant’s case was not one of those matters. The CEO, who initiated the adverse actions, allegedly placed the assistant on leave just one hour after learning about the complaints. In almost any situation, a time gap of one hour will be close enough to satisfy the temporal proximity requirements and establish the causal connection element.
Most instances of retaliation in New York will not be nearly this blatant. They may involve gaps of several months. Those gaps may still be enough, however. In 2010, the federal courts found a five-month gap in a JetBlue employee's case showed temporal proximity. A federal district court said in 2022 that the three-month gap a New York City social studies teacher alleged was close enough.
As noted above, many instances of retaliation involve temporal gaps that fall into the “sometimes yes, sometimes no” category. When they do, establishing that you have a sufficient causal connection requires careful argument and an in-depth understanding of the law of retaliation. The knowledgeable New York employment retaliation attorneys at Phillips & Associates work every day to help New Yorkers -- who have endured unfair workplace punishment simply because they stood up against discrimination or harassment -- to get justice and hold those wrongdoers accountable. Contact us online or at (833) 529-3476 to set up a free and confidential consultation.