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Can I Win My Retaliation Case Even if I Don’t Win My Discrimination / Sexual Harassment Claim? (Hint: Yes You Can!)

When you’ve endured discrimination or sexual harassment at work, you’re probably feeling a lot of things – anxiety, anger, confusion and fear may be among them. Amidst all that stress, there’s also a harsh calculation many such victims must make: do I report or don’t I? What happens if I do report? Will I be ostracized, demoted, fired or blacklisted?

Of course, it is extraordinarily unfair that victims have to think this way, but retaliation is a terrible reality in the workplace. However, if you suffer reprisals after you decide to file a harassment or discrimination complaint, that retaliation is, in itself, a potential basis for a successful outcome in court. Whatever kind of misconduct you’ve been the victim of, you shouldn’t suffer in silence and you shouldn’t go it alone. Reach out to a knowledgeable New Jersey employment attorney who can help you carefully identify all of your options and assess which one is best for you.

One of the important things to know is that you don’t have to win your underlying discrimination or harassment case in order to win your retaliation case. S.M.’s lawsuit is a good example. S.M. worked for a New Jersey-based bank for 36 years. She received several promotions and rose to the rank of “First Vice President” in 2004.

Allegedly, though, there was a glass ceiling at the bank. The next rank above first VP was “Senior Vice President.” During S.M.’s last 10 years with the bank, 14 men received a promotion to senior vice president. By comparison, zero women received a promotion to senior VP.

In 2010, S.M. started advocating for her own promotion to senior VP and to receive the same respect and salary “as the males.” Soon after S.M. began openly asserting the alleged issues of gender bias at the bank, things began to deteriorate at work for her. By the summer of 2011, the bank had laterally transferred S.M. to a different position. Although the transfer involved no reduction in salary, S.M. considered it a demotion because it provided her with a more difficult pathway to promotion to senior VP. Things worsened further and the bank fired S.M. on Sept. 15, 2011.

The vice president sued, alleging both sex and age discrimination, along with retaliation.

Retaliation can take many forms

The outcome of S.M.’s case is an important piece of information about how discrimination and retaliation cases work. Retaliation is a claim that says that your employer took an adverse action against you because you engaged in a “protected activity.” In terms of retaliation law, this covers many things like (1) opposing illegal discrimination or harassment, (2) participating in another person’s harassment or discrimination case (or an investigation into harassment or discrimination) or (3) your lodging a discrimination or harassment complaint against your employer.

So, how does that potentially work? For one thing, it means that, if your coworker lodges a harassment or discrimination claim and you are questioned in the ensuing investigation into that complaint, your employer cannot take adverse action against you for speaking to investigators, including your giving testimony that potentially would strengthen the other worker’s case against your employer. The same is true for testifying in your coworker’s discrimination or harassment case, even if that testimony is harmful to your employer’s position.

For another thing, it means that your employer cannot take adverse employment action against you for filing a harassment or complaint. As pointed out above, there is no requirement that you have to win your harassment or discrimination claim in order to succeed and recover damages for retaliation. If you can prove that your employer took a negative action against you for suing or making an administrative complaint, you can win a retaliation claim regardless of what happens to your underlying discrimination/harassment claim.

That’s what happened in S.M.’s action. The jury was not persuaded that S.M. was the victim of discrimination, but the jury was persuaded that she was the victim of retaliation by her employer for making a discrimination complaint.

For that, the jury found for the employee and awarded her $935,000.

What you can take away from S.M.’s case is that there are many ways that an employer can improperly harm an employee at work, and there are many different paths for that harmed worker to sue successfully and recover much-needed compensation. The diligent New Jersey employment attorneys at Phillips & Associates are here to help guide you through the process. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation and to find out how our knowledgeable attorneys can assist in achieving positive results.

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