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To achieve our goal of keeping you informed, this blog is Part XIII and an update of our series on federal laws that apply to the issues of workplace harassment, discrimination, & retaliation in New York. In Part XII, we covered Part I of “Whistleblowing, Retaliation Claims & Liability Standards,” recognized under the various federal laws. Accordingly, to move the discussion forward, we will hammer on Part 2 of “Whistleblowing, Retaliation Claims & Liability Standards,” as recognized by applicable federal laws in this blog and part XIII of the series.

Part 2: Whistleblowing, Retaliation Claims & Liability Standards Recognized under Federal Laws Applicable to Workplace Harassment, Discrimination, & Retaliation in New York.

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

Liability Standards

Americans with Disabilities Act (ADA)

Under the ADA, it is unlawful for employers to retaliate against persons who take part in a given activity that the Act protects. There are two categories under which ADA-protected activities are typically classified:

  1. Testimony clause activity – undertakings that include any manner of participating, assisting, or testifying in a hearing, proceeding, or investigation under the ADA comprise activities under this category.
  2. Opposition clause activity – while they typically include external and internal discrimination complaints, undertakings that include opposing any ADA-prohibited practice or act comprise activities under this category.

Further, pursuant to Section 42 U.S.C. § 12203(b), it is unlawful for employers to threaten, intimidate, or coerce persons who exercise ADA-protected rights, as well as from interfering with a person’s exercise of ADA-protected rights. However, plaintiffs are not required by the ADA to prove their participation in opposing or opposition to an actual ADA violation as proof of engaging in protected activity. Rather, the ADA requires the person only to demonstrate that they had reasonable belief and in good faith that the ADA was violated by the underlying conduct.

Patient Protection and Affordable Care Act (ACA)

Under the ACA, it is unlawful for employers to retaliate against persons who are about to take part, or who take part, in a number of whistleblowing activities such as:

  • Refusing or objecting to taking part in any activity that a person reasonably believes to amount to ACA violation.
  • Assisting, taking part, or testifying in a whistleblower proceeding under the ACA.
  • Causing the reporting or reporting of an omission, act, or violation of the ACA to the state attorney general, the federal government, or an employer.

Accordingly, for a retaliation claim under the ACA to be established, a prima facie claim must be stated as follows:

  • The employee suffered an adverse employment action.
  • The employee took part in a protected activity.
  • The circumstances were sufficient to indicate that the adverse action was highly motivated by the protected activity-and-
  • It was known to or suspected by the respondent that the employee took part in the protected activity.

Section 1981

Following a 2008 Supreme Court landmark case, employees may bring retaliation claims under Section 1981. Currently, retaliation claims brought under Section 1981 are analyzed in a similar manner to those brought under Title VII.

Immigration Reform and Control Act (IRCA)

Retaliation claims brought under the IRCA are sometimes analyzed identically to those brought under Title VII. As ruled in a part case, the party alleging IRCA violation is required to show the following in order to establish a prima facie case of retaliation under the Act:

  • The individual took part in protected opposition or participation.
  • The activity was known to the employer.
  • The person’s participation or opposition to the protected activity led to them suffering an adverse employment action-and-
  • The adverse employment action and protected activity shared a causal connection (the adverse employment action comprised a retaliatory motive).

Uniformed Services Employment and Reemployment Rights Act (USERRA)

The USERRA requires a person to demonstrate that the adverse employment action taken by the employer was motivated by the employee’s engagement with a protected activity in order to prevail on a retaliation claim. Contrary to other laws, employees are protected by USERRA’s anti-retaliation provision against tangible adverse employment actions only, which include but are not limited to transfers, demotions, and terminations. As opposed to Title VII, the USERRA’s anti-retaliation provision is relatively narrow in protecting employees, which has been interpreted by courts as covering any retaliatory adverse treatment where a person would reasonably likely to be deterred from taking part in protected activity.

Genetic Information Nondiscrimination Act (GINA)

Like under Title VII, it is unlawful for employers to retaliate against persons who take part in a particular GINA-protected activity. Just like under the ADA, there are two categories under which GINA-protected activities are typically classified:

  • Testimony clause activity – undertakings that include any manner of participating, assisting, or testifying in a hearing, proceeding, or investigation under the GINA comprise activities under this category.
  • Opposition clause activity – while they typically include external and internal discrimination complaints, undertakings that include opposing any GINA-prohibited practice or act comprise activities under this category.

However, similar to the ADA, plaintiffs are not required by GINA to prove their participation in opposing or opposition to an actual GINA violation as proof of engaging in protected activity. Rather, the Act requires the person only to demonstrate that they had reasonable belief and in good faith that the GINA was violated by the underlying conduct. Accordingly, to state prima facie retaliation claim, the plaintiff must demonstrate that they were subjected to a “materially adverse employment action” by the employer and which a reasonable worker would have been dissuaded from supporting or making a discrimination charge, as defined by courts.

In Part XIV, we will move forward the discussion by hammering on “Disability-Related Protections” under various 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.