In an era of increased employment litigation claims for discrimination, many former employees are claiming to be whistleblowers or victims of retaliation for reporting violations of the law. In order to avoid complicated, costly lawsuits, employers must understand what constitutes retaliation and when an employee can be protected as a whistleblower, says Caroline A. Grech-Clapper, a partner at Secrest Wardle.
“Because whistleblower and retaliation claims are often fact-intensive, courts are more inclined to let the case go to a jury to be decided,” Grech-Clapper says.
Smart Business spoke with Grech-Clapper about who qualifies as a whistleblower and how employers should handle these claims.
Who qualifies as a whistleblower?
A whistleblower is an individual who takes action to report wrongdoing that has occurred or is ongoing in the workplace or in the industry. They report serious wrongdoing observed on the job, such as when employees or superiors are engaging in conduct that violates state or federal laws, regulations or rules, refusing to comply with relevant statutes or guidelines, covering up wrongdoing, or engaging in fraud. Employees are protected if they have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age or disability. Individuals who have a close association with someone who has engaged in protected activity also are covered. For example, it is illegal to terminate an employee because his or her spouse participated in employment discrimination litigation.
What is considered retaliation?
Retaliation occurs when an employer, employment agency or labor organization takes an adverse employment action against the employee. An adverse action is termination, demotion, harassment for filing a charge of discrimination or participating in a discrimination proceeding, or otherwise opposing discrimination. Examples of retaliation include:
- Termination, refusal to hire or denial of promotion
- Threats, unjustified negative evaluations or negative references, or increased surveillance
- Assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights