Federal Whistleblower and Retaliation Laws

I. INTRODUCTION

EEOC Compliance Manual†ß 614.1. Retaliation and whistleblowing claims are particularly difficult to defend because the†claimant need not show that he or she was a victim of actual unlawful discrimination. He or she†need only show (1) that he or she complained about what he or she believed to be discriminatory†conduct, and (2) an adverse employment action temporally connected to the complaint. This†combination gives rise to a strong presumption, precluding early dismissal of a lawsuit. As a†consequence, employers, managers and human resource personnel should familiarize themselves†with federal and state retaliation and whistleblowing laws to avoid these claims, or at least to†manage existing claims to minimize legal liability and financial exposure. Though each state has†its own statutory and common law, this chapter will focus on federal law.

The primary federal law is Title VII of the Civil Rights Act of 1964, as amended by the†Civil Rights Act of 1991, which prohibits an employer from discriminating against an employee†or applicant because he or she opposed perceived discriminatory conduct against individuals who†"made a charge, testified, assisted, or participated in any investigation, proceeding, or hearing"†or who "opposed any practice made unlawful" by the Act. 42 U.S.C. ß 2000e-3(a). The†Americans with Disabilities Act ("ADA"), 42 U.S.C. ß 12203(a), the Age Discrimination in†Employment Act ("ADEA"), 29 U.S.C. ß 623(d), the Equal Pay Act ("EPA"), 29 U.S.C.†ß 206(d) and the Federal Labor Standards Act ("FLSA"), 29 U.S.C. ß 215(a)(3), contain identical†or substantially similar protective clauses.

A. Whistleblowing Versus Retaliation Claims

1. Whistleblowing Claims

   A "whistleblowing" claim arises when an employee reports illegal or unlawful conduct†by a co-worker, employer, other person or company to a person in a position of authority, or†publicizes such unlawful or illegal conduct, and suffers some adverse employment action. A†commonly recognized whistleblowing scenario is where an employee reports a company's illegal†conduct, such as dumping chemicals into a river or burying radioactive waste in the desert, to the†media or a government agency and then suffers an adverse employment action such as†termination or ostracization.

   In such a situation, federal employees are protected by the Whistleblower Protection Act.†5 U.S.C. ß 1201. They may also be protected under the False Claims Act. 31 U.S.C. ß 3730.†There is, however, no single federal law prohibiting employers in general from retaliating against†whistleblowers. There is instead a patchwork of statutes and regulations covering various areas†of business and industry 1. The variegated nature and complexity of these statutes and regulations†prevent a detailed discussion and is beyond the scope of this chapter.

   These statutory regulations generally protect employees from discharge or discrimination†if he or she files a complaint, initiates an agency investigation of an employer's activities, or†cooperates with the regulatory agency to enforce the regulations in that area of business or†industry. See 82 Am. Jur. 2d Wrongful Discharge ß 55 (1992). Each statute contains a distinct†filing provision, statute of limitations, and judicial or administrative remedies. The type and†scope of protected whistleblower conduct varies from statute to statute. Unless an employer is in†a highly regulated industry or a public entity, it will not likely face a federal whistleblower claim.†Employers are more likely to face a retaliation claim, which is discussed in the following section.

   Many states have enacted their own laws to protect whistleblowers. State laws often†have longer statutes of limitation than federal law and can encompass more conduct than the†industry-specific federal statutes. Damages available under state laws may differ from federal†law. Although state whistleblower statutes vary in substance and content, most require the†employee to prove three basic elements: (1) protected activity; (2) adverse employment action†because of the activity; and (3) a causal connection between the protected activity and the†adverse employment action. J. Barber, Federal & State Whistleblower Laws - Emerging Issues†for the Millennium: A Defense Perspective, ABA- Labor and Employment Law Section 1999†Mid-Year Meeting. Employers should consult state laws upon receiving a complaint for†retaliation or whistleblowing to ensure state laws do not have different standards or procedures.

   2. Retaliation Claims

   A "retaliation" claim arises when an employer takes adverse action against an employee†because he or she complained of harassment or discrimination or participated in an investigation†or proceeding involving harassment or discrimination. Most states have their own statutory or†common law claims of retaliation, which can mirror the federal statutes. To assert a retaliation†claim, the employee must show that (1) he or she engaged in an activity protected by the statute†(e.g., opposed discrimination or participated in a statutory compla int process); (2) he or she†suffered an adverse employment action (e.g., demotion, suspension, discharge, etc.); and (3) a†causal connection between the protected activity and the adverse employment action. Hazel v.†United States Postmaster Gen., 7 F.3d 1, 3 (1st Cir. 1993); Womack v. Munson, 619 F.2d 1292,†1296 (8th Cir. 1980), cert. denied, 450 U.S. 979 (1981).

   B. Federal Statutory Coverage

1. Covered Employers

   The employee must initially show that the federal statutes cover the at-issue employer.†To be covered, an employer must have fifteen or more employees for "each working day for†twenty or more calendar weeks in the current or previous year." 42 U.S.C. ß 2000e. If the†employer does not meet this criterion, it may not be sued even if the employee has a valid claim,†which reflects Congress' intent to protect small employers from retaliation claims. Again,†employers should always consult state statutes or case law to ensure that they are not covered†under those laws, which may have a lower or no employee threshold for coverage.

   The employer charged with retaliation need not be the same employer whose allegedly†discriminatory practices were opposed by the employee. If employer retaliates against an†Water Pollution Control Act, 33 U.S.C. ß 1367, 29 C.F.R. Part 24; Welfare and Pensions Disclosure Act, 29 U.S.C.†employee for his or her conduct at another employer, the employee may have a valid claim. See†Christopher v. Stouder Memorial Hosp., 936 F.2d 870, 877 (6th Cir.), cert. denied, 502 U.S.†1013 (1991) (holding that the defendant's frequent references to plaintiff's sex discrimination†action against prior employer warranted inference that defendant's refusal to hire was†retaliatory). Even if the employee has left the job, he or she may have a claim if the former†employer retaliates against him or her. Ruedlinger v. Jarrett, 106 F.3d 212, 214 (7th Cir. 1997).†Unlike the garden variety employment discrimination case which requires an employment†relationship or at least an attempt to create one, current and former employers are exposed to†retaliation claims.

   2. Covered Employees

   Any employee may assert a retaliation claim. That employee need not also allege that he†or she suffered discrimination because of race, religion, sex, national origin, age or disability. A†claim of retaliation alone is sufficient. Because the employee need not be a victim of†discrimination to assert a retaliation claim, there is no requirement that the employee be a†member of a protected group. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273,†279-80 (1976) (holding Title VII applied to all races, including Caucasians); Diaz v. Pan†American World Airways, Inc., 442 F.2d 385, 386-88 (5th Cir. 1971) (holding Title VII applies†to females and males). A Caucasian male who complains that his African-American female co-worker†has been subject to a hostile work environment may have a claim if he suffers any†adverse treatment for making the complaint or testifying as a witness. More importantly, the†employee need not show that the complained of conduct was unlawful. The employee need only†show that he or she had a reasonable, good faith belief that unlawful conduct had occurred.†Mesnick v. General Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991), cert. denied, 504 U.S. 985†(1992). Thus, even if the complaint is without merit, an employer may still be exposed to a†retaliation claim if the complaining employee suffers an adverse employment action.

   Federal law protects current employees as well as former employees. Womack v.†Munson, 619 F.2d at 1296-97 (allowing a former employee to sue former employer after†receiving a negative reference after filing an EEOC charge following his termination). Federal†law also prohibits retaliation against anyone "so closely related to or associated with" a person†exercising his or her statutory rights that the person would be discouraged from pursuing those†rights. Thus, "third party reprisals - i.e., discrimination against one person because of a friend's†or relative's protected activities" are unlawful. EEOC v. Ohio Edison Co., 7 F.3d 541, 544-45†(6th Cir. 1993) (holding an employer may not retaliate aga inst an employee because his or her†spouse filed an EEOC charge); see also Murphy v. Cadillac Rubber & Plastics, 946 F. Supp.†1108, 1117-18 (W.D.N.Y. 1996) (holding an employer could not retaliate against employee†based on his wife's protected activities).

   II. TYPES OF PROTECTED CONDUCT

   Congress has struck the balance in favor of the employee to afford him or her protection†from invidious discrimination, by protecting his or her right to file charges and oppose†discrimination. Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1007 (5th Cir. 1969).†Under the federal retaliation statute, employers may not take adverse actions against any†individual because: (1) "he has made a charge, testified...