Retaliation against employment discrimination claim is improper

It’s common in California and other jurisdictions for a wrongful termination claim to include more than one area of discrimination or other violations by the employer. In one recent case, a woman has filed suit against her former employer on a number of claims, including gender discrimination, sexual harassment and other employment discrimination issues. There is also a claim of retaliation.

The plaintiff was employed for 13 years with a cardiovascular consulting firm. She claims that the company had financial difficulties and decided to cut costs by freezing employee pay. She claims that during that period one of her co-workers was promoted even though her own base pay did not increase for more than five years.

The news reports describing the lawsuit are sparse in details. Thus, it’s unknown if the co-worker who was promoted was a male or female. To support her gender discrimination claim, the promoted individual would have to be a male. A gender claim cannot be based on being passed up for a promotion or raise in favor of another woman.

She also includes a claim for sexual harassment. She alleges suffering a pattern of demeaning sexual comments and gestures by co-workers. She claims to have reported the incidents, but the employer apparently took no discernible action because the harassment only increased thereafter.

The plaintiff alleges that she was ultimately terminated in retaliation for her complaints of discrimination and harassment. If her complaints were made in good faith, retaliation against those complaints can be grounds for a finding of wrongful termination. That is true even if the original complaint of harassment or discrimination is not upheld.

Thus, under both California and federal law, even if the former employee’s claims of employment discrimination or harassment are not supported by sufficient evidence, she may prevail on the retaliation claim. If an employee makes a good faith claim of discrimination or harassment, the employer may not retaliate even if the charges made by the employee are unfounded. In this case, pre-trial discovery will reveal the details and the strength of the plaintiff’s case, and the prospects for a potential settlement or other positive outcome.

Source: The Southeast Texas Record, "Tyler Cardiovascular Consultants, others named in discrimination claim", Ben Hart, May 21, 2014

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