Employment Lawyer Blog

When an employee complains to supervisors or federal agencies, like the Equal Opportunity Employment Commission (EEOC), about sexual harassment, discrimination, or other mistreatment, employers often get angry and fire or demote the worker. This kind of action - known as retaliation -- is strictly and seriously illegal. Employers can be seriously punished for "retaliation against" employees who engage in "protected conduct," like complaining about unfair practices. But the law regarding retaliation can get quite confusing. This blog post aims to answer some frequently asked questions and dispel some myths about the process.

What does it mean to "engage in protected conduct"?

A variety of state and federal laws prohibit employers from discriminating against employees on the basis of gender, age, sex, and several other metrics. Employees who complain about unfair benefits, pay, and leave practices -- or who raise allegations of discrimination or harassment -- are protected from retaliation.

What if you lose your discrimination or benefit case? Can your employer then retaliate?

Absolutely not. For instance, say you complain to the New York Department of Labor about an overtime dispute, and the DOL denies your claim. Despite the negative outcome of the case, your employer cannot enact any reprisals against you.

Do retaliation laws prevent complaining employees from getting fired or demoted ever?

No. They simply prevent employers from engaging in those activities because of the complaint. For instance, if you file a complaint about sexual harassment and then decide to play hookie from work for five days to party in Las Vegas and fail to tell your supervisor... you can be fired because your boss would have a legitimate and legal reason to terminate you.

My brother and I work at the same manufacturing plant. He made a complaint about racial discrimination. Am I protected from employer retaliation?

No. The Supreme Court is currently reviewing a similar case in which a man got fired shortly after his fiancée filed a claim with the EEOC for gender discrimination. The court has yet to rule on that case. If the man wins, then perhaps retaliation rights will expand to include spouses and others who have significant close relationships with the complainant.

What do you need to do to prove your claim?

First, you have to show that you had been engaging in protected conduct, as defined above. Second, you have to show that you suffered a tangible bad action - such as getting fired or getting demoted. Finally, you have to prove the "cause and effect" leading from the complaint to the adverse consequences.

How do I know whether I have a case against my employer for retaliation?

Call the law firm of Joseph & Kirschenbaum at 866-348-7394, or schedule a free consultation through www.jhllp.com to learn more whether you do in fact have a case.

Yet another high profile sexual harassment case faces the Cheesecake Factory. According to the Tampa Tribune, Michael Knight, a 42-year-old employee at the Cheesecake Factory's Westfield mall location in Brandon, Florida, has filed a federal suit against his employer for "mental anguish and loss of dignity." According to an attorney for Mr. Knight, the Equal Employment Opportunity Commission (EEOC) has outlined evidence demonstrating that Knight was harassed by male line chefs and retaliated against for complaining about the abuse. The EEOC stated that he "was subjected to severe sexual harassment and that the sexually hostile environment was pervasive."


The Tribune detailed one instance of the alleged harassment. Knight had been preparing meatloaf for a customer, when one of his employees topped the dish with a sanitary pad. Knight took the practical joke to his quality assurance supervisor, who simply "smirked" at the harassment.

Knight says that he was mocked, punished and then finally fired in September 2008 because of his complaining about the harassment.

The EEOC recently investigated a very similar case against a Cheesecake Factory in Arizona. The EEOC in that case found that "overwhelmingly... the men suffered sexually abusive behavior, including abusers directly touching victims' genitals, making sexually charged remarks, grinding their genitals against them, and forcing victims into repeated episodes of simulated rape."

The Cheesecake Factory has denied the Arizona allegations and has not yet responded to Knight's federal suit.

Unfortunately for line cooks, waiters, dishwashers, and other restaurant employees who are subjected to harassment, discrimination, retaliation on the job, help often seems hopelessly far away. After all, when you are immersed in a culture of harassment, you may feel alone and without recourse -- particularly if your supervisor or manager refuses to intervene to end the bad behavior... or even actively participates in it.

The good news is that you don't have to battle through this on your own. Contact Joseph & Kirschenbaum at www.jhllp.com or 866-348-7394 to get a complimentary and confidential consultation about your sexual harassment or retaliation matter.

On December 7, the US Equal Employment Opportunity Commission (EEOC) announced that it had reached a settlement agreement in a widely publicized case of same-sex sexual harassment. Fleming's Prime Steakhouse & Wine Bar, a Scottsdale, Arizona restaurant, will pay out $248,750 to three men who alleged that they had been groped, fondled, and harassed sexually by DC Ranch chef, Tod Rawson. According to the EEOC complaint, the male kitchen workers had complained to multiple managers at Fleming's about the harassment, but nothing was done to end it. The EEOC allegations painted a graphic picture: "Rawson frequently pinched or squeezed his subordinates' private parts, flicked their genitals with his bare hands, and groped them from behind. Rawson even used kitchen utensils from the restaurant to touch his victims' genitals through their clothing."

Speaking on behalf of Fleming's, Executive Vice President Joseph Kadow said that the restaurant had "acted responsibly" and that the company settled the EEOC lawsuit "without admitting liability" - in other words, the restaurant simply paid out to avoid the hassle and headaches of continuing litigation.

Mary Jo O'Neill, a regional attorney for the EEOC, made it clear that the agency wanted to send a message: "The key lesson we want people to take from this case: Employers must protect their employees from sexual harassment."

As this blog and others that discuss issues like gender discrimination, sexual harassment, retaliation, and wage and hour violations at restaurants have described, restaurant employees - even employees who work at high profile New York City eateries - often find themselves subjected to diverse kinds of mistreatment. For instance, a manager may illegally take a percentage of a waiter's tips. Or employees may be expected to work overtime without getting overtime pay. Restaurant employees may labor under hostile work environments - subjected to inappropriate sexual comments, racial comments, or other abuse.

Furthermore, restaurant workers may not have the time, knowledge, or resources to know how to stop the destructive behavior. An employee's complaint to a supervisor may go unanswered. Or the behavior may stop temporarily only to start up again, spontaneously, weeks or months later. An unresponsive complaints system may lead mistreated employees to abandon hope of a fair and just resolution.

Fortunately, resources abound for mistreated workers -- at restaurants and elsewhere. If you or a coworker or someone you care about has been fighting against on-the-job harassment, discrimination, retaliation, or other inappropriate behavior, look to the law firm of Joseph & Kirschenbaum for guidance. Call 1-866-348-7394 right now to schedule a consultation, or learn more about the options available to you at www.jhllp.com.

Last Tuesday, the U.S. Supreme Court discussed whether a plaintiff in a retaliation case should be allowed to sue his ex-employer. The complicated matter centers around Eric Thompson and his wife, Miriam Regalado, who both worked for a Kentucky manufacturing company, North American Stainless, back in 2003. Regalado, who at the time was Thompson's fiancé, contacted the US Equal Employment Opportunity Commission (EEOC) on February 13, 2003 to file a charge against her supervisors for gender discrimination. Less than a month later - on March 7 - the company fired her fiancé, Thompson. Thompson then headed to the EEOC and filed his own complaint... for retaliation.

At first, the lower courts dismissed Thompson's suit for retaliation because "[he] did not himself engage in protected activity" by filing the original EEOC complaint.

Thompson's lawyer responded to this argument as follows: "They singled out Ms. Regalado and Ms. Regalado's fiancé. They didn't go fire anybody else's fiancé."

The steel company has not argued that it might be illegal to retaliate against someone's family or friends; rather, the company's attorneys have raised the question of whether a person who did not suffer gender discrimination (or another kind of discrimination) should be allowed to use the discrimination laws to sue.

Justice Samuel Alito worried that okaying Thompson's right to sue would generate an onslaught of retaliation cases. If the Court ruled in favor of Thompson, would the decision instigate a flood of lawsuits from people connected to employees who complain? Alito wondered: "Does it include simply a good friend... somebody who just has lunch in the cafeteria every day with the person who engaged in the protected conduct...somebody who once dated the person who engaged in the protected conduct?"

Although the Supreme Court won't likely decide on the case until 2011, industry analysts and blogs related to discrimination, harassment, and retaliation have been heatedly debating the case's pros and cons.

If you or a friend or coworker has been on the receiving end of workplace discrimination, harassment or other mistreatment - or if you have been terminated or demoted for filing a claim with the EEOC or making a complaint to a supervisor - the law firm of Joseph & Kirschenbaum (JHLLP) can help. Learn your rights and get a free and totally confidential case evaluation: explore details at www.jhllp.com, or call 1-866-348-7394.

The Philadelphia Inquirer reports that McFadden's Restaurant & Salon has resolved a racial discrimination lawsuit brought by bartender Michael Bolden.

Bolden started working at the bar in 2007 while studying law at Temple University. After noticing what he believed to be discriminatory policies - he alleged that the bar made a push to cater specifically to white patrons starting in August 2010 - Bolden got entangled in unsavory email and text message exchanges with his managers. One manager, Walt Wyrsta, sent several inflammatory messages, including one that read: "We don't want black people, we are a white bar!" Upon internal investigation, McFadden's fired Wyrsta.

According to the terms of the settlement, McFadden's will hire an HR consultant to enforce nondiscrimination policies and establish a confidential hotline for workers to report future complaints of racial discrimination, sexual harassment, or retaliation. McFadden's also must report on its progress to the court every quarter for a full year.

Bolden, who now serves as a lawyer for Community Legal Services, a local non-profit that gives legal services to the poor, elected not to receive any compensation as part of the settlement. He said: "My goal is to effectuate changes at McFadden's that will positively impact race relations." McFadden's majority shareholder issued a statement of thanks to Bolden for alerting the company to the discrimination and said "race discrimination at McFadden's 3rd Street is not acceptable and will not be tolerated."

Often, cases of racial discrimination, national origin discrimination, and retaliation can fester for months if not years. Victims may feel like that their rights have been compromised and that no one can end the tyrannical policies or punish offenders. Fortunately, victims of on-the-job mistreatment have a key resource, the law firm of Joseph & Kirschenbaum. Learn more about what JHLLP can do for you at www.jhllp.com, or schedule a free consultation by calling 866-348-7394.