Retaliation in the workplace occurs when an employer punishes an employee for exercising protected rights.
Laws prohibiting retaliation
There are a number of laws that prohibit retaliation in Maryland workplaces. For example:
Title VII prohibits retaliation against an applicant or employee who opposes discrimination or harassment. 42 U.S.C. § 2000e-3.
Maryland's version of Title VII, the Maryland Fair Employment Practices Act (MFEPA), also prohibits retaliation. Md. Code, State Gov't § 20-606(f).
The Fair Labor Standards Act (FLSA) prohibits retaliation for complaints about overtime or unpaid wage issues. 29 U.S.C. § 215(3).
The Family Medical Leave Act (FMLA) prohibits retaliation related to the requesting or taking of medical leave. 29 U.S.C. § 2615.
Lastly, in the rare event that none of these laws apply, Maryland employees may still be able to pursue a retaliation case—in the form of a wrongful discharge tort claim (i.e., being fired in violation of an important public policy). Adler v. American Standard Corp., 291 Md. 31, 43 (Md. 1981).
Statutes of limitation
How long an employee has to file a retaliation claim in Maryland depends on which law applies to their case; however, most Maryland employees will have just 300 days to file an administrative charge for retaliation. 42 U.S.C. § 2000e–5(e)(1). Maryland employees with wage or medical leave retaliation claims may have a little more time.
Any employee facing retaliation should consult with a Maryland employment lawyer as soon as possible.
Proving a retaliation claim
To establish a retaliation case in Maryland, an employee must prove that:
the employee engaged in protected activity;
the employer subsequently took a materially adverse employment action against the employee (or the employee's spouse/family member); and,
the adverse employment action was causally connected to the protected activity.
Edgewood Mgmt. Corp. v. Jackson, 212 Md. App. 177, 199 (Md. Ct. Spec. App. 2013). Let's talk about each of these "elements" of a retaliation claim individually.
Every law prohibiting retaliation requires that the employee have engaged in "protected activity." Here are some common examples of protected activity:
Lodging an internal complaint (written or verbal) regarding discriminatory or unlawful conduct;
Filing an administrative complaint with, for example, with the U.S. Equal Employment Opportunity Commission (EEOC);
Filing a lawsuit against the employer;
Supporting another employee's lawsuit by, for example, providing testimony;
Requesting an accommodation for a disability under the Americans with Disabilities Act (ADA); or,
Filing a workers' compensation claim.
Adverse employment action
A retaliation claim is rooted in the "materially adverse employment action" the employer takes against the employee. Examples of this include:
Reassignment to a less desirable position;
Failure to promote; or,
A reduction in work hours.
Ultimately, any employment action that would significantly deter an employee from engaging in protected activity can constitute an adverse employment action. But, be warned, giving an employee the "cold shoulder," or even writing them up, generally isn't serious enough to constitute an adverse employment action.
A causal connection
Lastly, an employee needs to show that the adverse employment action was taken because of their protected activity. One of the most common ways to establish causation is through "temporal proximity," in other words, the amount of time that passed between the protected activity and the adverse employment action. If that amount of time is short (generally, less than one year), that's a strong sign of retaliation. Cf. Williams v. Cerberonics, Inc. , 871 F.2d 452 (4th Cir. 1989).
Ultimately, the employee must produce sufficient evidence for a Maryland jury to reasonably conclude that the employer intentionally retaliated against the employee because of the employee's protected conduct.
Remedies for retaliation
Exactly what an employee can win for a retaliation case (i.e., the "remedies") depends on which law applies to their case. But, generally, remedies for Maryland employees who are victims of retaliation include:
Attorneys' fees and court costs; and,
Here are some relatively recent examples of remedies in retaliation cases:
A female neurosurgeon complained about her supervisor's inappropriate and demeaning treatment toward women. When her medical credentials were due for review, her hospital failed to reappoint her. A jury awarded her $600,000 in compensatory damages for her retaliation claim, which was affirmed on appeal. Tuli v. Brigham & Women's Hosp., 656 F.3d 33 (1st Cir. 2011).
RadioShack put an employee on a performance improvement plan after 25 years of spotless performance and then fired him before the time for improving performance had ended. The jury awarded $187,706 in back pay and the judge awarded the same amount as liquidated damages, plus front pay in lieu of reinstatement. Equal Emp't Opportunity Comm'n v. RadioShack Corp., Civil No. 10-cv-02365-LTB-BNB, at *1 (D. Colo. Dec. 6, 2012).
A female police officer was subjected to ugly, gender-based verbal assaults on a bus trip and retaliation for years after cooperating in an internal investigation of the incident. A jury awarded her over $2 million in compensatory and punitive damages on her retaliation claim. Dixon v. Int'l Bhd. of Police Officers, 504 F.3d 73 (1st Cir. 2007).
Maryland employees have the right to oppose unlawful conduct in the workplace—without fear of retaliation.
If you're facing retaliation in the workplace, schedule a free, confidential consultation with an employment lawyer at the Employment Law Center of Maryland today. We're here to help.