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To achieve our goal of keeping you informed, this blog is Part XII and an update of our series on federal laws that apply to the issues of workplace harassment, discrimination, & retaliation in New York. In Part XI, we provided you with an overview of “Vicarious Liability for Harassment” & “Same-Sex Harassment” as recognized under the various federal laws. Accordingly, to move the discussion forward, we will hammer on Part 1 of “Whistleblowing, Retaliation Claims & Liability Standards” as recognized by applicable federal laws in this blog and part XII of the series.

Part 1: Whistleblowing, Retaliation Claims & Liability Standards Recognized under Federal Laws Applicable to Workplace Harassment, Discrimination, & Retaliation in New York.

The jurisdiction of New York recognizes whistleblowing and/or retaliation claims pursuant to specific sections of various federal laws as outlined below.

NOTE: The information regarding these laws and the liability standards applied under each was current as of March 26, 2021.

  • Section 29 U.S.C. § 201 et seq. of the Fair Labor Standards Act (FLSA).
  • Section 42 U.S.C. § 2000e(k) of the Pregnancy Discrimination Act (PDA).
  • Section 29 U.S.C. § 206(d) of the Equal Pay Act (EPA).
  • Section 29 U.S.C. § 621 et seq. of the Age Discrimination in Employment Act (ADEA).
  • Section 42 U.S.C. § 12101 et seq. of the Americans with Disabilities Act (ADA).
  • Section 42 U.S.C. § 2000e et seq. of Title VII of the Civil Rights Act of 1964 (Title VII).
  • Section 42 U.S.C. § 18116 of the Patient Protection and Affordable Care Act (ACA).
  • Section 42 U.S.C. § 1981 of Section 1981.
  • Section 38 U.S.C. §§ 4301–4335 of the Uniformed Services Employment and Reemployment Rights Act (USERRA).
  • Section 8 U.S.C. § 1324b(a)(1)(B), (a)(3) of the Immigration Reform and Control Act.
  • Section 42 U.S.C. § 2000ff(4)(A), (B) of the Genetic Information Nondiscrimination Act of 2008 (GINA).

Liability Standards

Title VII of the Civil Rights Act of 1964 (Title VII)

For a retaliation claim under Title VII to prevail, an employee must state a prima facie claim and typically show that (1) that the employee took part in a protected activity, (2) that the employee suffered an adverse employment action, and (3) that the adverse employment action and protected activity shared a causal connection. Essentially, to demonstrate an adverse retaliatory action, the employee must show that the challenged action would have been found materially adverse by a reasonable employee, which, under this context, implies that a reasonable worker would have been dissuaded from supporting or making a discrimination charge. Generally, the employee is required by Title VII to prove that retaliation was the “but-for” cause for the adverse employment action. However, showing that the occurrence of the unlawful retaliation would not have taken place were the alleged employer’s wrongful action or actions were absent is the required proof.

Fair Labor Standards Act (FLSA)

An employee who brings a retaliation claim under the FLSA is required to prove by a preponderance of the evidence that, following the employee’s engagement in an activity that the FLSA protects, they were retaliated against by the employer. Such an employee must demonstrate the following in order to prevail on a retaliation claim under the FLSA:

  • An adverse employment action was taken against the employee by the employer.
  • The employee’s engagement in a protected activity motivated the employer’s actions-and-
  • The employee took part in an activity that the FLSA protects.

Pregnancy Discrimination Act (PDA)

The anti-retaliation provision provided under Title VII was not amended by the PDA. Technically, protection against retaliation to persons who oppose (or help other individuals oppose) Title VII- prohibited discrimination or participate in proceedings under Title VII is limited by Title VII’s provision. Therefore, an employee should essentially demonstrate the following to have a prima facie PDA retaliation claim:

  • The employee took part in a protected activity.
  • An adverse employment action was undertaken by the employer and, consequently, the employee suffered it-and-
  • The adverse employment action and protected activity shared a causal connection.

Equal Pay Act (EPA)

In line with the anti-retaliation provisions of the Fair Labor Standards Act (FLSA), it is unlawful for employers to retaliate against employees who take part in particular FLSA-protected activities. Accordingly, any employee who brings a retaliation claim under the FLSA is required to prove by a preponderance of the evidence that, following their engagement in an activity that the FLSA protects, they were retaliated against by the employer. However, the employee must show the following in order to prevail on an FLSA retaliation claim:

  • An adverse employment action was taken against the employee by the employer.
  • The employee’s engagement in a protected activity motivated the employer’s actions-and-
  • The employee took part in an activity that the FLSA protects.

Age Discrimination in Employment Act (ADEA)

Pursuant to Section 29 U.S.C. § 623(d) of the ADEA, employers are prohibited from retaliating against persons who oppose ADEA-prohibited discrimination or take part in proceedings under the Act. However, to assert a successful ADEA retaliation claim, a plaintiff is not required, like under Title VII, to establish an underlying claim of age discrimination. Instead, an employee is supposed to have a reasonable belief regarding the occurrence of the ADEA violation. Accordingly, an employee must show that the adverse employment action would not have been subjected to them if they were not a member of a protected class.

In Part XIII, we will move forward the discussion by hammering on Part 2 of “Whistleblowing, Retaliation Claims & Liability Standards” under additional federal laws applicable to workplace harassment, discrimination, & retaliation in New York.

Until then, stay tuned for more legal guidance, training, and counsel. In the interim, reach us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.