Retaliation
Summary
TLDRThis video script from the Montana Human Rights Bureau addresses the issue of retaliation under anti-discrimination laws. It explains that retaliation is a significant concern, with the bureau receiving numerous complaints annually. The script outlines the legal definition of retaliation, which is narrower than the general understanding, focusing on adverse actions taken against individuals for engaging in protected activities such as opposing discrimination or filing complaints. It details the elements required to establish a prima facie case of retaliation, including proof of protected activity, significant adverse actions, and a causal connection. The video also discusses the burden of proof and the importance of evidence in retaliation cases. Finally, it offers best practices for preventing retaliation in the workplace.
Takeaways
- 📚 Retaliation is prohibited under Montana's and federal anti-discrimination laws, and is the second most common complaint received by the Montana Human Rights Bureau.
- 🔍 The legal definition of retaliation is more specific than the dictionary definition, focusing on significant adverse acts taken against someone for engaging in protected activities.
- 🚫 Protected activities include opposing discrimination, participating in investigations or proceedings, and requesting accommodations for disabilities or religious practices.
- 🏢 The definition of 'person' under the Montana Human Rights Act is broad, including individuals, organizations, and agencies, which can all be held liable for retaliatory actions.
- 🚫 Forbidden practices are outlined in specific chapters and generally refer to unlawful discrimination based on protected class membership in areas such as employment, housing, and education.
- 💡 To establish a prima facie case of retaliation, a charging party must prove they engaged in protected activity, were subjected to a significant adverse act, and there is a causal connection between the two.
- 🔗 Evidence of retaliation can include direct statements of intent to retaliate, comparative data showing inconsistent treatment, or timing that suggests a connection between protected activity and adverse action.
- ⚖️ If a charging party can prove a prima facie case, the burden shifts to the respondent to provide a legitimate non-retaliatory reason for their actions, which the charging party can then attempt to disprove.
- 🏛️ Direct evidence of retaliation or significant adverse acts taken within six months of a concluded discrimination complaint create a disputable presumption of retaliation, shifting the burden to the respondent.
- ✅ Best practices for preventing retaliation in employment include clear communication, regular training, promoting a grievance system, leadership commitment, seeking independent oversight, and monitoring the work environment.
Q & A
What is the definition of retaliation under Montana's anti-discrimination laws?
-Retaliation under Montana's anti-discrimination laws is defined as a significant adverse act taken against a person because they engaged in a protected activity, such as opposing discrimination or participating in a related investigation.
What is the difference between the dictionary definition of retaliation and the legal definition in Montana's anti-discrimination laws?
-The dictionary defines retaliation as getting revenge or returning like for like, whereas Montana's anti-discrimination laws define it more specifically as an adverse act taken because someone engaged in protected activities like opposing discrimination.
What are examples of protected activities under Montana’s anti-discrimination laws?
-Examples of protected activities include opposing unlawful practices, filing a complaint, testifying, assisting, or participating in investigations or proceedings related to discrimination, and requesting accommodations for disabilities or religious beliefs.
Who can be liable for retaliatory actions under the Montana Human Rights Act?
-Under the Montana Human Rights Act, 'person' is broadly defined to include individuals, labor unions, corporations, employers, organizations, legal representatives, and employment agencies. This means a wide range of entities can be liable for retaliatory actions.
What types of practices are considered unlawful and can lead to retaliation if opposed?
-Unlawful practices include employment discrimination, refusal to return a female employee to work after maternity leave, housing discrimination based on protected classes, and other discriminatory actions in protected areas like employment, housing, public accommodations, education, and financial transactions.
What constitutes a 'significant adverse act' in a retaliation case?
-A significant adverse act is one that would discourage a reasonable person from engaging in a protected activity. Examples include violence, threats, demotion, denial of benefits, expulsion, eviction, or other actions affecting employment, housing, or public accommodations.
What is meant by 'reasonable opposition' in the context of retaliation?
-Reasonable opposition refers to opposing discrimination in a manner that is appropriate and does not cause disruption. For example, loudly accusing an employer of racism in front of customers may not be considered reasonable, even if the claim itself is valid.
How does the shifting burden analysis work in retaliation cases?
-Once a charging party proves a prima facie case of retaliation, the burden shifts to the respondent to provide a legitimate, non-retaliatory reason for their actions. If the respondent does this, the burden shifts back to the charging party to prove that the reason is pretextual.
What is the 'disputable presumption' in retaliation cases?
-A disputable presumption occurs if a retaliatory action happens within six months of a discrimination complaint being filed or resolved. In such cases, the respondent must prove that their actions were non-retaliatory, instead of the charging party having to prove retaliation.
What are some best practices for preventing retaliation in the workplace?
-Best practices include clear communication of expectations after a protected activity, routine training on discrimination and retaliation, promoting a visible grievance system, leadership commitment to anti-retaliation policies, seeking independent input for decisions, and monitoring the work environment.
Outlines
📚 Introduction to Retaliation in Montana Human Rights
This paragraph introduces the topic of retaliation under Montana's anti-discrimination laws and federal laws. It highlights that retaliation is the second most common complaint received by the Montana Human Rights Bureau. The paragraph explains the legal definition of retaliation, which is more specific than the common understanding, focusing on significant adverse acts taken against individuals for engaging in protected activities. The protected activities include opposing discriminatory practices, filing complaints, testifying, assisting, or participating in investigations related to discrimination. The paragraph also discusses the broad definition of 'person' under the law, which can include individuals, organizations, and agencies, thus expanding the scope of potential retaliators.
🔍 Analyzing Retaliation Complaints and Protected Activities
This paragraph delves into the process of analyzing retaliation complaints and the concept of protected activities. It outlines the three elements necessary to establish a prima facie case of retaliation: engaging in protected activity, being subjected to an adverse act, and proving a connection between the two. The paragraph further explains the types of protected activities, such as opposition to discrimination, participation in investigations, and requests for accommodations. It emphasizes the need for opposition to be in good faith and reasonable, using examples to illustrate these points. The paragraph concludes by discussing the significance of proving a causal link between protected activity and adverse acts, which can be established through timing, intent, or other evidence.
🛠️ Defining Adverse Acts and Causal Connection in Retaliation
The third paragraph discusses what constitutes a significant adverse act in the context of retaliation, which is an act that could deter a reasonable person from engaging in protected activities. It provides examples of such acts, ranging from violence and intimidation to more subtle actions like demotion or denial of benefits. The paragraph also explains the need to establish a causal connection between the protected activity and the adverse act, which can be demonstrated through timing, witness statements, or direct evidence of retaliatory intent. It outlines the legal process where the burden of proof shifts between the charging party and the respondent, depending on the evidence presented, and the standards for proving retaliation.
📉 Evidence and Burden of Proof in Retaliation Cases
This paragraph focuses on the evidence required to prove a retaliation case and the burden of proof. It discusses how direct evidence of retaliation can shift the burden to the respondent to prove that their actions were not motivated by retaliation. The paragraph also mentions the 'disputable presumption' that arises when an adverse act is taken within six months of a discrimination complaint, placing the burden on the respondent to prove non-retaliatory intent. Examples are provided to illustrate how inconsistencies in an employer's treatment of employees can be used to demonstrate pretext. The paragraph concludes by noting that an individual can file a complaint for retaliation based on their association with someone engaged in protected activity.
🏢 Best Practices for Preventing Retaliation in Employment
The final paragraph offers best practices for preventing retaliation in the workplace. It suggests maintaining clear communication, educating staff on discrimination and retaliation, promoting a robust grievance system, ensuring leadership commitment to anti-retaliation policies, seeking independent oversight for sensitive decisions, and monitoring the work environment. The paragraph concludes by providing contact information for the Montana Human Rights Bureau for further inquiries or assistance regarding retaliation or discrimination.
Mindmap
Keywords
💡Retaliation
💡Protected Activity
💡Significant Adverse Act
💡Prima Facie Case
💡Shifting Burden Analysis
💡Preponderance of the Evidence
💡Direct Evidence
💡Protected Class
💡Opposition
💡Accommodation
💡By Association Complaint
Highlights
Retaliation is the second highest filing received by the Montana Human Rights Bureau each year.
Retaliation is defined differently under Montana's and federal anti-discrimination laws than the general dictionary definition.
Protected activity includes opposing discrimination, participating in investigations, and requesting accommodations.
Opposition to discrimination is protected even if it's informal, as long as it's done in good faith and reasonably.
Participation in any investigation or proceeding regarding discrimination is considered protected activity.
Requests for accommodations due to disability or religion are protected activities in the employment area.
A significant adverse act must be proven to establish a prima facie case of retaliation.
A causal connection between the protected activity and the adverse action is required to prove retaliation.
Direct evidence of retaliation shifts the burden of proof to the respondent to show no unlawful motive was involved.
A disputable presumption of retaliation arises if an adverse act is taken within six months of a discrimination complaint's conclusion.
Witness statements and comparative data can help prove pretext in retaliation cases.
Retaliation must be proven by a preponderance of the evidence, meaning it is more likely than not that it occurred.
The broad definition of 'person' under the Montana Human Rights Act includes various entities that can be liable for retaliation.
Protected classes under federal and state laws are outlined, and discrimination must occur within a protected area.
Best practices for preventing retaliation in employment include clear communication, education, and a strong grievance system.
For more information on retaliation, discrimination, or the Montana Human Rights Bureau, visit www.montanadiscrimination.com.
Transcripts
[Music]
hello and welcome to a montana human
rights bureau presentation on
retaliation
although retaliation and discrimination
complaints are two separate types of
complaints
retaliation is proscribed under
montana's anti-discrimination laws and
federal anti-discrimination
laws as such the human rights bureau is
tasked with investigating complaints of
retaliation as well as discrimination
retaliation has been for some time and
continues to be
the second highest filing that the
bureau receives each year
retaliation is statutorily defined and
is different than the dictionary
definition of the word
and what most people understand as
retaliation
the merriam-webster definition of
retaliate or retaliation is to return
like for like or get revenge
however the definition under the state
and federal anti-discrimination laws is
much more specific
regarding the reason or motivation
behind the revenge taken
the bureau only has the authority to
investigate complaints of retaliation
that allege that a respondent took a
significant adverse act against a
charging party
because that person engaged in a
protected activity
anti-retaliation provisions are found
under both the montana human rights
act and the governmental code affair
practices combined these statutes
prohibit a person
educational institution financial
institution governmental entity
or state or local governmental agency
from discharging
expelling blacklisting or discriminating
against someone in any fashion
because he or she engaged in protected
activity
the language of these statutes provide
that protected activity is opposing
any practices forbidden under the
montana human rights
act or the governmental code of fair
practices which in essence is opposing
discrimination
the statutes also state that filing a
complaint testifying assisting or
participating in any manner in an
investigation or proceeding of
allegations
of discrimination is protected activity
it should be noted that when the statute
states it's unlawful for a person to
retaliate
the montana human rights act defines
person very broadly
the statutory definition of person means
one or more individuals
labor unions partnerships associations
corporations legal representatives
employers
organizations and employment agencies
this broad definition is important
because it widens the scope
of who can be liable for taking
retaliatory actions
you may have noticed that the statutes
pertaining to retaliation mention that
it is unlawful to retaliate against
someone for opposing practices forbidden
under this
chapter what are those forbidden
practices
well those chapters outline very
specific forbidden practices
such as the requirement for an employer
to return a female employee to work in a
same or equivalent position after
maternity leave
or the prohibition of notices or
advertisements for housing
that indicates a preference or
limitation based on protected class
to whom housing will be sold or rented
however
forbidden practices more generally mean
unlawful discrimination
which is when someone takes an adverse
act against an individual
in a protected area because he or she is
a member of a protected class
the protected areas of
anti-discrimination laws are
employment public accommodations
governmental services
housing education insurance
and financial transactions so for
example if someone complains that they
were refused alone because of his or her
race
that is opposing discrimination in the
protected area financial transactions
the discrimination being opposed must
occur within one of these protected
areas to be considered protected
activity
here you see the protected classes under
federal and state laws enforced by the
bureau
in order for an action to be
discriminatory not only must it be taken
in a protected area
as reviewed in the previous slide but
the action must have been
also taken because of the person's
membership in one of these protected
classes
in a previous example someone complained
they were denied alone based on race
so race was the protected class another
example is if a girl complains to her
high school that she is treated
differently than other students
because she is from morocco which places
her in the protected class of national
origin and the protected area of
education
by making that complaint she has engaged
in protected activity
however if a girl complains she's
treated differently at school because
she has blonde hair
which is not a protected class such
complaint would not be protected
activity because the actions being
opposed
are not based on a protected class and
are therefore not discriminatory
when a retaliation complaint is filed
with the bureau
this is the initial analysis it uses to
determine if a charging party can
establish a primo fascia case of
retaliation
primo fascia is a latin term that means
on its first appearance
the charging party must prove each
element of a primo fascia case
to show that what respondent did the
adverse act
looks like retaliation on its first
appearance
the first element requires the charging
party prove that he or she engaged in a
protected activity
next the charging party must show that
he or she was subjected to a bad act by
respondent
and lastly the charging party must prove
that there is a connection between his
or her engaging in the protected
activity
and the significant adverse act taken by
respondent
now let's look at each of these elements
more closely
in order to analyze whether or not a
charging party satisfies the first
element of the primo fascia case for
retaliation
you must understand what constitutes
protected activity
protected activity includes opposition
participation
and requests for accommodations we will
now look a little closer at each
protected activity
there are three things to understand
regarding opposing discrimination
the forbidden practices we reviewed
earlier as a protected activity
opposition puts a respondent on notice
it is done in good
faith and it is done reasonably
opposition can be protected
even if it's informal a person does not
have to use magic words like protected
class
harassment or discrimination at the
bureau we look at it from the
perspective
of whether the charging party said
something to the respondent
that put the respondent on notice that
the charging party was concerned about
something that would fall within the
bureau's purview
said another way is the charging party
voicing a concern that the bureau might
be interested in
as an example if an employee says to his
boss i think i'm getting paid less than
tori
she's younger and started after me and i
trained her up
that is a complaint that an employee
feels treated less favorably than
someone who is younger
this statement is opposition to possible
age discrimination
accordingly an employee making such a
statement has engaged in protected
activity
but to the second point on our slide if
you're opposing something
you have to oppose in good faith the
protection for opposition is limited to
those people
that act with a reasonable good faith
belief that the conduct opposed is
unlawful or could become unlawful if
repeated
so what if a woman complains to her boss
that she doesn't like that her co-worker
asked her out on a date
well this one act may not legally
qualify as sexual harassment
but the co-worker could possibly
continue on a path that would become
harassing if left unchecked
therefore the woman's complaint of an
incident that could manifest as sexual
harassment
would be protected activity if her
employer's response to her complaint
is to put her on the worst shift
possible just to get her
out of the way of the offender that may
be retaliation for her complaint
let's now take a moment to talk about
reasonable opposition
because reasonable opposition is
different than good faith opposition
if you're going to oppose discrimination
you still have to do it in a reasonable
manner
if your manner of opposition is
unreasonable you may end up giving your
employer a legitimate
non-retaliatory reason to take an
adverse act against you
for example we had a charging party file
a complaint at the bureau who works in a
bar
and when her boss called in to talk to
her while she was at work
she started a bit of a tirade yelling at
the person who answered the phone that
she didn't want to talk to their boss
because he was a racist yes the charging
party complained about discrimination
by saying that her boss is a racist but
it wouldn't matter if she was
complaining about discrimination
or the cost of cocktail nappings you
holler that in front of patrons and
employees there's probably going to be
consequences
the bureau recognizes that a charging
party may not prevail
on a complaint if it was brought in bad
faith or if the manner of opposition was
not reasonable
the next type of protected activity is
participation
respondents cannot punish a person for
filing a complaint
serving as a witness or participating in
any other way
in an investigation matter even if the
underlying discrimination allegation is
unsuccessful
or untimely this has been interpreted to
include participation in an employer's
internal complaint process
as well even if a charge of
discrimination has not yet been filed
the third and last type of protected
activity is requests for accommodation
requesting an accommodation for either a
disability or religion is a protected
activity in the area of employment
an example of a request for religious
accommodation can be your native
american employee
asking for time off to attend a pow-wow
request for an accommodation for a
disability
much like retaliation is complex and an
entire separate training topic on its
own
but for now just understand that a
request for an accommodation is when an
employee expresses to his or her
employer
a need for a modification or change at
work due to a mental or physical health
condition
for example if an employee requests time
off to seek out cancer treatment
that is a request for accommodation for
a disability
if the employer then schedules that
employee for an unfavorable shift
or discharges him because he requested
time offers disability
the employer retaliated against the
employee
once it's established that a charging
party engaged in a protected activity
he or she must next prove that the
respondent subjected him or her to a
significant adverse act
in order to satisfy the second element
of the primo fascia retaliation case
a significant adverse act is one that
would dissuade a reasonable person from
engaging in a protected activity
the administrative rules of montana
provide a non-exhaustive list of
possible actions
that could amount to a significant
adverse act of retaliation
including violence or threats of
violence
intimidation discharge demotion or
denial of benefits
expulsion denial of privileges or goods
at a public accommodation
eviction or other action that adversely
affects availability of housing
opportunities
or a denial of credit or insurance
although these examples include tangible
employment actions
significant adverse actions can be much
broader in scope
for example in the area of employment an
employer could take a significant
adverse act
in retaliation against an employee
exclusively outside of work
such as a supervisor starting an
altercation with an employee at a
company picnic
because the employee made unfavorable
statements about the supervisor's
discriminatory actions
during an investigation into
discrimination
the third and final element of the
retaliation primo fascia case requires
the charging party to prove that there
is a causal connection or nexus between
the protected activity
and the significant adverse action
evidence that may support there is a
connection
include suspiciously close timing
between the protected activity and the
adverse action
or proof that respondent intended to
retaliate against charging party by way
of comments by the respondent
or witness statements
if a charging party is able to satisfy
all three elements and prove a prima
facie case of retaliation
then a shifting burden analysis is used
once the charging party meets the burden
of proving the primo fascia case the
burden then shifts to the respondent to
produce a legitimate
non-retaliatory reason for the adverse
act it took against the charging party
once the respondent produces that
legitimate non-retaliatory reason
the burden shifts back to the charging
party to prove that the reason proffered
by respondent
is pretext or unworthy of belief
in order to prevail on a retaliation
complaint a charging party must prove
his or her case by a preponderance of
the evidence
this means that retaliation more likely
than not occurred
this standard is less onerous than
beyond a reasonable doubt or based on
clear and convincing evidence
rather it is a 51 probability based on
the evidence at hand that discrimination
occurred
a preponderance of the evidence standard
is the same standard used by courts
reviewing retaliation cases
so what type of evidence helps a
charging party overcome that last hurdle
in the shifting burden
what shows that a respondent's reason
for challenged conduct is pretext or
unworthy of belief
any evidence that tends to show that the
proffered legitimate non-retaliatory
reason is false
can lead to a charging party prevailing
on a retaliation complaint
witness statements that bolster a
charging party's position or
impeach a respondent's reasons for
taking a significant adverse action
may prove pretext also comparative data
can help disprove a respondent's
legitimate non-retaliatory reasons
for example the bureau had a case where
a salesman opposed discriminatory
conduct by a supervisor
and thereafter was disciplined and
eventually terminated for not
consistently using
the company software tracking system for
sales calls
he only entered his numbers on the
system here and there
the comparative data showed that another
member of the sales team
one who had not engaged in protected
activity had not used the software at
all for months failing to record any
activity
yet that team member received no
punishment
this inconsistency in the respondent's
actions towards its employees when
meeting out discipline
proved that the employer's reason for
disciplining the salesman and
terminating his employment
were pretext to retaliate against him
for engaging in protected activity
as mentioned earlier witnesses reporting
that the respondent made statements of
an intent to retaliate against charging
party may be evidence of a causal
connection between protected activity
and an adverse act
but what if a respondent says rights
emails or
texts such a statement directly to the
charging party
that would be direct evidence of
retaliation it is important to note that
the administrative rules of montana
changed this analysis a bit in the event
that there is direct evidence of
discrimination or retaliation
when there is direct evidence there is
no shifting burden but rather
respondent must prove by a preponderance
of the evidence that an unlawful motive
played no role in the action it took
against charging party
alternatively respondent can prove that
the direct evidence is not credible
and unworthy of belief an example of
direct
evidence of retaliation would be a
landlord telling his tenant
maybe next time you'll think twice about
filing a complaint with hud against me
when the tenant asks why he's being
evicted by the landlord
in addition to direct evidence there is
another way a charging party can get
around having to prove a primo fascia
case of retaliation
if a charging party has a complaint of
discrimination or retaliation at any
stage of the administrative process with
the department of labor and industry
or in court and with knowledge of that
complaint a respondent takes a
significant adverse act against charging
party
the respondent will then have to
overcome a disputable presumption that
the adverse action was retaliation
the disputable presumption is also
created for any significant adverse acts
a respondent takes against a charging
party
within six months of the final
conclusion of the complaint of
discrimination or retaliation as well
like in the case of direct evidence this
means that a respondent will have to
prove by a preponderance of the evidence
that its actions were not retaliatory
for the complaint filed against it
instead of the charging party having to
prove a primo fascia case in pretext
by preponderance of the evidence in
order to prevail
as an example of how the disputable
presumption works consider the following
case
a charging party filed a complaint with
the bureau alleging sex-based
discrimination against her employer
a few months after that case concluded
the charging party filed a retaliation
complaint
asserting that her employer retaliated
against her for the previous complaint
by ignoring her during staff meetings
and informing her when management was
meeting with the attorney
who represented the organization for her
discrimination complaint
because of the prior discrimination
complaint filed by charging party
and her allegation that the adverse acts
occurred within six months of the
conclusion of that first complaint
a disputable presumption was created and
respondent had the burden of proving
that its actions were non-retaliatory
even with this presumption charging
party was unable to prevail
on her retaliation complaint although
charging party felt she was being
treated differently after her initial
discrimination
complaint ultimately she was unable to
prove that the acts she asserted were
retaliatory either occurred as she
stated
or that they rose to the level of a
significant adverse act
it's interesting to note that an
individual can also file a complaint for
an adverse action taken against him or
her
because of an association with or
relation to
a person who is engaged in a protected
activity
this type of complaint is referred to as
by association complaint
although retaliation can occur in any of
the protected areas under
anti-discrimination laws discussed
earlier
the area of employment sees the highest
number of retaliation cases
year after year with that in mind
here are some suggestions for best
practices for preventing retaliation
in the area of employment first
after someone engages in protected
activity make sure there is clear
communication of expectations
don't simply expect everything to
spontaneously return to normal
second routinely educate and train your
staff on both discrimination
and retaliation third
promote a highly visible and vigorous
grievance system for retaliation claims
fourth ensure leadership commitment to
the anti-retaliation environment
fifth seek independent input and
oversight for decisions that may impact
a person that is engaged in protected
activity
when possible and six monitor the
environment
would you like to learn more about
retaliation discrimination
or the montana human rights bureau visit
our website at
www.montanadiscrimination.com
or give us a call toll free at
1-800-542-0807
you can also call us locally at
406-444-2884
関連動画をさらに表示
Elon Musk’s Car Company Tesla Faces Allegations Of Racist Discrimination Against Black Employees
How to Work with an Insecure Boss: The Harvard Business Review Guide
Legal HD 17 - Work Discrimination Against Women
Human Rights Issues - Toronto Employment Lawyer
IDF Mass Warning: IT’S IMMINENT | Hizbullah’s “Sunni” Ally: “EXECUTE Them All & ATTACK Israel Now!”
OSHA: Young Workers’ Rights
5.0 / 5 (0 votes)