Retaliation

Summary

This 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.