Federal Employee Reprisals: How to Bring a Successful Claim
The Law Firm of J.W. Stafford | June 15, 2020
Even the best federal employee protection laws mean little without a prohibition against reprisal. The threat of having to face retaliation for complaining about wrongful behavior can have a negative effect on future complaints or reports of discrimination, corruption or other improper activities. Then there’s the unfairness of having a victim of illegal conduct being forced to face further harm for simply doing the right thing.
Because the threat of reprisal is so strong when reporting misconduct, Maryland employees need to be aware of what to expect and what legal rights they may have should retaliation take place. This is where it’s good to have a Maryland employment lawyer, such as one from the Law Firm of J.W. Stafford. They can explain what your options are and what you can do to best protect yourself and your job.
What Is Reprisal?
The short answer is that it’s the same as retaliation. As a more complete answer, reprisal refers to subjecting an employee to an adverse action because they engaged in a protected activity.
An adverse employment action can refer to almost any significant negative action against an employee. This includes:
• Pay cut
• Denied promotion
• Transfer to a less desirable position
• Harassment, such as verbal or physical abuse
• Increased scrutiny by the employer
• Giving an unwarranted negative performance evaluation
A protected activity means something the employee has a right to do, such as:
• Complaining about sexual harassment or another form of discrimination
• Reporting employer misconduct as a whistleblower
• Helping someone who is the victim of discrimination
• Cooperating in an investigation into the employer’s alleged improper behavior
• Requesting a workplace accommodation pursuant to a religious belief or disability
There are two ways reprisal will typically take place.
First, there’s the classic case of reprisal that is basically the equivalent of revenge. For example, a boss decides to deny an employee’s promotion because he filed a complaint against the boss for racial discrimination.
Second, there’s per se reprisal. This isn’t retaliation for something the employee did. Instead, it’s an intentional or inadvertent warning about the employee taking part in a protected activity.
For instance, during a department meeting, a boss complains about how much she hates whistleblowers and how all they do is cause headaches for her department and that if she had her way, she’d make sure no whistleblower was ever allowed to work for the federal government again. A prospective whistleblower hears this and in response, decides not to blow the whistle on the boss.
Bringing a Reprisal Claim
To successfully sue for reprisal, an employee must present evidence to establish that:
• The employee engaged in a protected activity;
• The employee suffered an adverse employment action; and
• There is a causal connection between the protected activity and the adverse employment action.
In most cases, it’s this last element that presents the biggest challenge to employees who are the victims of reprisal. Only in rare instances, is there a “smoking gun” piece of evidence to establish a causal connection. This might be an email or letter where the boss tells the employee that the promotion request is being denied because they filed a complaint against the company.
But a successful reprisal claim can be made even without a smoking gun. Various pieces of evidence can come together to serve as circumstantial evidence to show that reprisal has occurred. Examples of circumstantial evidence might include:
• Suspicious timing between the adverse employment action and the protected activity.
• The employer’s reason for the adverse employment action is false.
• Other employees in similar situations were treated differently.
• The employer acting unusually or unconventionally following the protected activity.
One of the reasons why reprisal claims are so important and powerful for the employee is that they can succeed even if an underlying legal claim does not.
For example, an employee’s claim of retaliation for filing an age discrimination complaint goes nowhere after a jury concludes no age discrimination took place. However, if the employer retaliated against the employee for filing that complaint, the employer can still be liable for reprisal, even though the employee lost the age discrimination case.