Although it should not, speaking up in opposition to inappropriate or illegal workplace practices comes with risk. Whether you are a whistleblower, someone seeking an accommodation, or someone opposing discrimination or harassment, you may find that your hours have dropped, your performance reviews have turned negative, or you have been let go entirely. When that happens, your employer may have engaged in the illegal employment practice of retaliation. If you have been punished for exercising your rights, you should contact a knowledgeable New York workplace retaliation lawyer as soon as possible. Your attorney can analyze the facts of your circumstance and help you plot out the best path forward.
J.D. was an NYPD detective and was “a white male Muslim of Hispanic and Dominican origin.” He also allegedly was the target of a retaliation campaign after he spoke up regarding perceived discrimination.
In 2022, the detective took leave and traveled to Ukraine to assist his son’s mother’s family. A supervisor, J.W., called him from New York and inquired, “What is a Dominican doing in Ukraine? I thought you were dead.” The detective was offended, believing that the comment showed animus toward Hispanics and Dominicans.
A few days later, the supervisor ordered the detective’s immediate supervisor to give J.D. a negative performance evaluation. “Defendants attempted to give him a 2.5 out of 5.0, which would have likely prevented his promotion to Sergeant, despite having already given him a 4.5 out of 5.0 for the year.” This attempt included a plan to retrieve the detective’s positive performance review and destroy it. In addition, the detective’s supervisor cut his overtime from 40 hours per month to nearly zero, costing him more than $25,000 per year in lost income.
The detective subsequently sued for national origin discrimination, hostile work environment, and retaliation. The trial court ruled for the defendants, but the Appellate Division reinstated the detective’s case.
The Appellate Division agreed that the detective did not have viable claims for national-origin discrimination or a hostile work environment. The comments he alleged (such as the “What is a Dominican doing in Ukraine?” question) comprised only a “tiny number of stray” remarks, and none of them had anything to do with an employment decision. These infrequent benign comments could not make for a hostile work environment because they amounted only to “petty slights and trivial inconveniences.”
The Elements of a Retaliation Claim
As the detective’s case illustrates, however, you do not necessarily need a viable discrimination claim or hostile work environment claim to have a viable retaliation claim. The law in New York only requires that (1) you engage in a protected activity, (2) you incur an adverse employment action, and (3) a “causal connection” links the adverse action to the protected activity. A good-faith complaint about perceived discrimination is a protected activity, even if the complaint ultimately does not constitute a civil violation.
One of the more common ways to establish this required connection is by showing “temporary proximity,” meaning closeness in time. In other words, if your employer’s adverse employment occurs only a few days or weeks after your protected activity, that is likely sufficient to show the required connection. If the gap between the protected activity and the adverse action is many months, however, courts are unlikely to see it as sufficiently close in time.
In the detective’s case, he complained about discrimination. Several days later, J.W. allegedly sought to supplant the detective’s positive performance review with a negative one. Then, after the detective filed a formal complaint, he “was ordered to report to psychological services for a mandatory evaluation, which resulted in the confiscation of his gun and shield.”
This was enough to create a viable retaliation claim under the New York State Human Rights Law and the New York City Human Rights Law. The allegations showed that the employer had “general knowledge” of the detective’s protected activity. Additionally, the “passage of only days” between the detective’s opposition to J.W.’s comments and J.W.’s performance review replacement tactic “easily falls within the acceptable temporal range to establish a causal connection.”
You do not have to be fired to win a retaliation lawsuit. You also do not have to win your underlying discrimination or harassment to win a retaliation claim. You do, however, have to take action within the prescribed time. If you believe you suffered a workplace punishment after you reported discrimination or harassment, get in touch with the skilled New York workplace retaliation attorneys at Phillips & Associates, PLLC. Our team is focused on protecting employees’ rights. To learn more about how we can help you, contact us online or call (866) 229-9441 to schedule a free and confidential consultation today.