In New York City, workers have multiple ways to seek justice after they have experienced impermissible retaliation at work. These include claims under federal, state, and city law. While these claims mirror each other in certain places, they are not identical. Their differences may be crucial to achieving a successful outcome, as some laws (e.g., city law) are more lenient than others. If you believe you have a retaliation case, you should discuss your options with a knowledgeable New York workplace retaliation lawyer who is experienced in all of these laws and the standards they require.
The case of S.G., a Manhattan lawyer, offers a good example of what we mean. The attorney served from 1999 to 2019 as an in-house lawyer for Con Ed, handling employment benefits and tax matters. In 2018, she received a new supervisor, C.D., who allegedly discriminated against her based on her age and gender. After the attorney spoke out against the discriminatory conduct she had experienced, the employer terminated her.
The attorney sued, alleging that the utility fired her after she spoke out against the discriminatory treatment she had received. The employer argued that there were “performance deficiencies” in the lawyer’s work, and those problems were the actual reason the employer fired her.
The employer moved for summary judgment. The trial court ruled in favor of the employer, thereby ending the lawyer’s case. The attorney appealed, however, and the 2d Circuit Court of Appeals granted a partial victory to the employee, reviving a part of her case.
In her lawsuit, the lawyer alleged discrimination and retaliation. The appeals court noted that the law compels the use of two separate frameworks for analyzing the lawyer’s retaliation claims. For her state (New York State Human Rights Law) and federal (Title VII and the Americans with Disabilities Act) retaliation claims, the law requires application of the burden-shifting framework established by the U.S. Supreme Court in McDonnell Douglas v. Green.
That framework initially places the burden on the plaintiff to show the existence of a “prima facie case” of retaliation. That requires demonstrating: (1) that the plaintiff engaged in a protected activity, (2) that the employer knew about this activity, (3) that the employer took adverse action against the employee, and (4) a “causal connection” links together the adverse action and the protected activity.
If the employee successfully does so, the burden shifts to the employer to demonstrate that it had a legitimate, non-retaliatory reason for the adverse action taken. Once the employer identifies a legitimate reason, the burden shifts back to the employee to demonstrate that the employer’s stated reasons were really pretexts for the employer’s retaliation motive.
In the lawyer’s case, she lacked a federal or state retaliation case because she lacked sufficient evidence of pretext. The employer had enough “sustained, documented criticism of [S.G.] ’s performance” to have a legitimate basis for its action. The court, in finding that the lawyer failed to establish pretext, noted that the history of documented criticism of the lawyer’s work predated her complaints about the mistreatment she received from C.D.
City Law Erects a Lower Hurdle to Clear
This evidence, however, was insufficient to preclude the attorney’s retaliation claim under the New York City Human Rights Law. In contrast to what state and federal law requires, city law employs a “more liberal standard.” Under city law, an employee may succeed on a retaliation claim even if she cannot satisfy the McDonnell Douglas test if the employee can demonstrate “that she was treated less well than other employees” at least in part because of retaliatory motives.
As the appeals court pointed out, the NYCHRL “takes a broader approach than [federal law] as to what constitutes a protected activity for the purpose of a retaliation claim.” Additionally, “retaliation claims under state and federal law require a plaintiff to show ‘but for’ causation, ‘which requires that the adverse action would not have occurred in the absence of the retaliatory motive.’” By contrast, city law does not demand “prove that the reason proffered by the employer for the challenged action was actually false or entirely irrelevant to the decision to take adverse action.”
Because city law imposed a more lenient standard and the appeals court could not confidently say the trial court applied that lower standard, the court revived the attorney’s retaliation claim under the NYCHRL and remanded the case for additional analysis under the proper standard.
Do you believe you have encountered impermissible retaliation at work? If so, act right away and get in touch with the experienced New York employment retaliation attorneys at Phillips & Associates, PLLC. Our team is here help assess your situation and plot the best path forward. To learn more, contact us online or call (866) 229-9441 to schedule a free and confidential consultation today.