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Discrimination

Illegal retaliation based on complaints about discrimination

Massachusetts law prohibits an employer from discharging or penalizing an employee who opposes discrimination in the workplace. The protection applies to employees who file formal charges of discrimination in court or an internal complaint with Human Resources or management. The person who files the complaint does not need to be the actual employee who is facing discrimination. Anti-retaliation laws extend to co-workers who corroborate or otherwise support the allegation of discrimination.

The employee does not have to show that actual discrimination occurred before she can claim illegal retaliation. The employee has to have an objective, good faith basis for believing that discrimination occurred.

To make a claim for illegal retaliation, the employee has to show: (1) she filed a complaint; (2) the person who retaliated against her knew about this complaint; (2) the employee then was subject to an adverse employment action like a suspension, termination, transfer, a bad performance review, or a job warning; (3) a causal connection exists between 1 and 2.

The employee can show a causal connection by direct evidence: Drop this discrimination complaint or I will fire you. If there is no direct evidence, circumstantial evidence is admissible. For example, if there is a close period of time between the employee’s complaint and the negative job action, this can be proof of discrimination under a theory known as “close temporal proximity.” I know, that sounds like a Star Trek term. But, it’s much simpler than that. It just means that retaliation can be inferred from the close time between the complaint and the adverse action.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464
617-969-2900

pam@pamsmithlaw.com

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