Frequently Asked Questions

Executive Employment Law

What laws cover executive employment issues?

A range of different statutes arise in executive employment law scenarios. These laws include:

Title VII of the 1964 Civil Rights Act;
Sarbanes-Oxley Act of 2002 (SOX);
Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank);
The Age Discrimination in Employment Act (ADEA);
The Americans with Disabilities Act (ADA);
The Equal Pay Act (EPA); and
Related state and local laws.

Often one or more of these laws may be the basis for a legal claim related to actions taken against executives, such as termination, denial of a promotion, and unequal pay. It is important to consult with an experienced executive employment lawyer to understand your legal options.

When is an employer’s reason for firing you a pretext or excuse for discrimination?

In employment litigation, some of the most important evidence is centered on the question of whether the employer had a legitimate reason to terminate your employment or whether the reason was simply a pretext for unlawful discrimination. A federal appellate court recently tackled this issue and fleshed out how an employee can prove that the employer’s purported reasons were just a mask for illegal behavior. Consult with an executive employment lawyer to find out more.

The ADEA, 29 U.S.C. §§ 621-34, prohibits an employer from discharging or otherwise “[discriminating] against any individual… because of such individual’s age.” 29 U.S.C. § 623(a). To win, a plaintiff “must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-178 (2009). Circumstantial evidence, as opposed to direct evidence of discrimination (which is less frequently available to plaintiffs), is analyzed under a three-part test created by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

What is an adverse employment action?

The facts and circumstances of each case determine whether a particular action rises to the level of an adverse employment action. Some common examples in the executive employment law context include termination of employment, denial of promotion, and unequal pay. An experienced age discrimination lawyer can help assess your claim.

Depending on the context, the EEOC has found that the following examples may also constitute an adverse employment action:

work-related threats, warnings, or reprimands;
negative or lowered evaluations;
transfers to less prestigious or desirable work or work locations;
making false reports to government authorities or in the media;
filing a civil action;
threatening reassignment; scrutinizing work or attendance more closely than that of other employees, without justification;
removing supervisory responsibilities;
engaging in abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not yet “severe or pervasive” as required for a hostile work environment; or
taking (or threatening to take) a materially adverse action against a close family member (who would then also have a retaliation claim, even if not an employee).

Talk with an executive employment lawyer to maximize your potential damages. If you have experienced workplace discrimination or whistleblower retaliation, call us at (202) 769-1681, or start your preliminary consultation online.

What is a "similarly situated employee?"

In the executive employment law context, one of the factors a court will likely analyze is how the company treated you compared to other “similarly situated employees.”

The precise definition of who is a similarly situated employee varies depending on the specific legal claim and in which federal court you file your case. Generally, however:

to be similarly situated to another employee, [the plaintiff] must show that the employee is directly comparable in all material respects.

Brown v. Illinois Dep’t of Natural Resources, 499 F.3d 675, 682 (7th Cir. 2007) (citation omitted). If your case is a class action, rather than an individual complaint, then a different take on the “similarly situated employee” may apply.

How to tell if someone counts as a “similarly situated employee”

To figure out if one of your c-suite colleagues qualifies as a “similarly situated employee,” a court will carefully review the particular facts in your case. Each case and each work environment is different, but some of the criteria that courts evaluate to see if you have identified a similarly situated employee who the company treated better are:

do you share the same supervisor;
do you perform very similar job tasks and responsibilities (both the number and weight) as the other person;
do you have similar job performance evaluations and disciplinary history; and
is your experience level (including supervisory experience) the same as the other person

Most courts do not require an exact match on these criteria, but the more similar you are to the other person, the more likely a court will deem them a “similarly situated employee.”

Talk with an experienced employment law attorney to better understand your legal options.

What damages can I get in an executive employment law case?

Several different types of remedies are available in an executive employment law scenario. Different laws provide specific remedies but a sample of the types of damages that may be available in an executive employment law case include:

Back pay – the lost pay and benefits, including bonuses and equity awards, you would have received absent the adverse personnel action (e.g., salary from the date of a termination or demotion until the date of the trial);
Compensatory damages – damages to compensate emotional distress and reputational harm that you suffered because of the sexual harassment;
Punitive damages – damages to punish the company if it acted with malice or reckless indifference;
Lost future earnings;
Equitable relief, such as an order reinstating you; and/or
Attorney’s fee and litigation expenses

Importantly, different federal, state and local laws may apply to your case and may allow different types and amounts of damages (Title VII, for example, has a cap on the amount of compensatory and punitive damages you can recover).

Talk with an experienced executive law lawyer to maximize your potential damages. If you have experienced workplace discrimination or whistleblower retaliation, call us at (202) 769-1681, or start your preliminary consultation online.

Common severance/settlement agreement issues

You’ve recently learned that you’re going to leave your job and now the company wants you to sign a settlement or severance agreement. In exchange for signing this agreement, you will receive a payment, but also give up your right to pursue legal action against the company (among other things).

At this stage, it is important to read the settlement agreement carefully and, if possible, get advice from an experienced executive employment lawyer as several provisions in the agreement may come back to haunt you. A few of these potential red flags include:

What Claims Are You Giving Up By Settling?

One of the trickier parts of a settlement/severance agreement has to do with the scope of legal claims that you agree to waive by signing the agreement. If, for example, you have a gender discrimination claim related to your company denying you a promotion to Senior Vice President in 2016, then you will of course be abandoning this claim as part of the agreement. But your employer will almost certainly want you to also agree to waive any employment claims you had as of the day you sign the settlement agreement. You should not, however, be required to waive any future claims related to your employment. So, for example, if you were again discriminated against in 2020 after you signed the agreement, you should not have to waive this subsequent claim as well.

Likewise, certain statutory rights exist, such as assisting a government agency (like the EEOC or the Department of Labor) in its investigation of the employer, which cannot be waived.

Confidentiality And Non-Disparagement Clauses

As with many things, the devil is in the details with confidentiality and non-disparagement clauses. You may want to require these provisions to be mutual so that the company cannot disparage you and/or talk about the terms of the settlement (what’s good for the goose is good for the gander).

Also, it’s important that these provisions do not unreasonably restrict your ability to assist with a government investigation of wrongdoing by your employer.

Non-compete and non-solicitation clauses

You may have agreed to a non-compete or non-solicitation restriction earlier in your employment or the employer may include it in the severance agreement. It is imperative that you understand your rights and responsibilities under the specific language you agreed to as this can have a major impact on your ability to find a new job. Accordingly, this should factor into the payment amount you receive under the settlement/severance. Different states have varying limits on the reasonable duration of a non-compete or non-solicitation agreements (for example, 6 months, 12 months, etc.)

Disputes about the settlement agreement and penalty provisions

What happens if one party believes the other party breached the settlement agreement six months after you signed it? Make sure you understand what will happen in this scenario. For example, will you be required to receive notice of the purported breach and be given an opportunity to cure it? Can you sue your employer in court over the alleged breach or will the dispute be subject to arbitration or mediation instead? You’ll also want to know who chooses the arbitrator and pays for them.

Similarly, if your employer claims you breached the settlement agreement, is there a penalty provision that may apply? That is, will you be required to pay back a portion of the settlement/severance?

When you receive your money and tax consequences

The agreement should spell out precisely when you will receive your payment and how you will receive it (check, wire transfer, etc.).

In addition, if you are settling potential legal claims as part of the agreement, you should consider whether all of the settlement payment should be treated as Form W-2 wages (subject to taxes and withholdings). Occasionally, you may want to characterize some of the payment as compensatory/emotional distress damages, which can be treated differently than wages and are reported on a Form 1099.

Each case is unique, as is each employer, so make sure you understand what your rights and responsibilities are before you sign your settlement/severance agreement. Otherwise, the assurances of ending your employment (and any legal claims) smoothly and with finality may not be worth the paper they’re written on.

Are executives and law firm partners covered by Title VII?

One of the more hotly debated topics is whether executives should be viewed as the employer versus the employee when they suffer discrimination at work. This matters a great deal because if s/he is deemed an employer, then the executive will not be covered by Title VII of the 1964 Civil Rights Act‘s (and most other federal laws’) anti-discrimination provisions. And this legal question is increasingly playing out in corporate boardrooms, medical practices, and law firms around the country.

In Clackamas Gastroenterology Associates v. Wells, 123 S.Ct. 1673 (2003), the Supreme Court outlined the main test courts use to decide whether a person is an “employee” covered by federal anti-discrimination laws, such as Title VII, the American with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).

The key factor is how much, or little, control the individual has over their work, compensation, and workplace decisions.

Clackamas involved an ADA case but courts apply the test to Title VII and other federal anti-discrimination statutes. The Supreme Court looked to the Equal Employment Opportunity Commission’s (EEOC) guidelines and settled on a six-factor test to assess if a person holding a high-level position should be considered an “employee” including whether:

the company can hire or fire the individual or set the rules and regulations of their work;
the extent to which the company supervises the individual’s work;
the individual reports to someone higher in the company;
the extent to which the individual is able to influence the company;
the parties intended that the individual be an employee, as expressed in written agreements or contracts; and
the individual shares in profits, losses, and liability of the company

Clackamas, 123 S.Ct. at 1680. None of these factors is decisive; instead, they should be viewed as a whole. Id. at 1681.

#1 Written Internal Complaint To Establish Whistleblowing Activity

To be clear, the various laws protecting whistleblowers from retaliation, such as the Sarbanes-Oxley Act (SOX), do not require employees to file a written, internal complaint to the company about potentially unlawful conduct. If, however, a written internal complaint exists, this document can help make a corporate whistleblower retaliation case even stronger. Note that whistleblower retaliation claims under certain statutes, such as the Dodd-Frank Act, require the employee to externally report their complaint to the U.S. Securities and Exchange Committee (SEC), meaning that submitting an internal complaint solely to the company is insufficient to establish a retaliation claim. Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767 (2018).

To establish a retaliation claim, a corporate whistleblower must generally show:

they engaged in protected activity (that is, complained about potentially unlawful conduct);
the employer knew they engaged in the protected activity;
they suffered an adverse employment action; and
the protected activity was a “contributing factor” in the adverse employment action

See 18 U.S.C § 1514A(a)(1)(C) and 49 U.S.C. § 42121(b)(2)(B). A stronger case exists to prove the second element, that the employer knew about the complaint/protected activity, if a copy of the written complain exists. Otherwise, the employer may claim that the whistleblower’s verbal complaint did not happen, was vague, and/or did not sufficiently identify potential violations of SOX or related corporate whistleblower retaliation laws.

#2 Job Performance Evaluations To Combat Employer’s “Same Action” Defense

If an employee establishes the four elements of whistleblower retaliation listed above, then the burden shifts to the employer to prove by “clear and convincing” evidence that it would have taken the same adverse action against the employee even if they had not blown the whistle. Often, a company will assert it needed to take action against the whistleblower (for example, termination, suspension, reduced pay, etc.) because of their alleged poor job performance.

Luckily, many companies provide employees with an annual job performance evaluation in which they rate or describe the employee’s work and results. These appraisals can be extremely valuable evidence for a whistleblower to undercut the employer’s “same action” defense claiming sub-par job performance. If recent positive job performance review(s) exist, this helps to discredit the company’s explanation and demonstrates that the claim of poor performance is instead an after-the-fact pretext for unlawful whistleblower retaliation. Similarly, any awards or bonuses given to the employee by the company serve as a potent retort to claims of inadequate job performance.

#3 Emails, Texts, And Slack Messages To Demonstrate The Company’s Retaliatory Intent

It is not necessary to prove a retaliatory motive to win a whistleblower retaliation case. But it does help. And one of the most ubiquitous—and powerful—pieces of evidence related to retaliatory intent are contemporaneous emails (or texts and other types of messaging).

Often emails and texts exist regarding (i) the company’s response to and knowledge of the employee’s whistleblowing activities; (ii) particular projects or alleged job performance problems the company will rely on to prove its “same action” defense; and (iii) discussion about the underlying potential unlawful conduct that the whistleblower reported which can help demonstrate the legitimacy of the whistleblower’s complaint.

Perhaps more than any other form of evidence in these cases, the wide-ranging use of email and texts can cause its users to “let their guard down” and occasionally say things in email that reveal their true mindset/intent, which is indispensable in corporate whistleblower retaliation cases.

During discovery in a whistleblower retaliation case, whether it is in court or before an administrative agency, a much broader range of documents and information will be exchanged. But corporate whistleblowers should have access to the above three categories of documents at a relatively early stage in the dispute, which should allow for a better and timely assessment regarding the potential strength of the case.

If you have experienced employment discrimination or whistleblower retaliation, call a top rated employment attorney at (202) 769-1681, or start your preliminary consultation online.

Can I recover punitive damages as part of an employment discrimination claim?

Yes. Under Title VII, you can recover punitive damages if you’re employed in the private sector. First, you’re going to have to prove to the court that you suffered employment discrimination. In addition to that, to receive punitive damages, you next need to prove that you suffered a particularly egregious form of discrimination. That is, your employer acted with malice or reckless indifference in how they treated you. Because ultimately punitive damages are designed to punish the employer for particularly bad forms of discrimination.

You cannot recover punitive damages in a discrimination case brought against the federal government.

Sexual Harassment

What is workplace sexual harassment?

It is illegal to harass an employee because of that person’s sex. According to the Equal Employment Opportunity Commission (EEOC), this unlawful sexual harassment includes unwanted sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Mere teasing or isolated comments/incidents that are relatively minor do not rise to the level of illegal sexual harassment. Harassment becomes unlawful when the conduct and/or statements become so frequent or severe that it creates a hostile work environment or results in an adverse employment action (for example, firing, demoting, or suspending the victim).

Talk with a sexual harassment lawyer to maximize your potential damages. If you have experienced workplace discrimination or whistleblower retaliation, call us at (202) 769-1681, or start your preliminary consultation online.

Who is a “supervisor” in a sexual harassment case?

A supervisor is an employee whom the employer has empowered to take tangible employment actions against the victim; that is, to make a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

However, sexual harassment does not have to come only from a supervisor, it can also come from a co-worker or another manager who does not supervise you.

What is a hostile work environment?

A hostile work environment is another form of sexual harassment. A hostile work environment is one filled with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

Does it matter if it is a supervisor versus a coworker who is harassing me?

It matters whether the harassment you suffered was perpetrated by a supervisor versus a coworker. The employer may automatically be liable if a supervisor’s harassment of an employee causes an adverse action such as termination, lost wages, or a suspension.

If a supervisor creates a hostile work environment for an employee (with no adverse action like being fired), then the employer can prevail only if it can prove:

it reasonably tried to prevent and promptly correct the harassing behavior; and
the employee unreasonably failed to take advantage of any preventive or corrective opportunities offered by the employer, such as reporting the harassment to the employer.

If a non-supervisory employee harasses another employee, then the employer will be liable for the harassment if the employer knew, or should have known, about the hostile work environment and failed to promptly correct it.

How do I prove a hostile work environment?

To prove a hostile work environment claim, an employee must prove that the underlying acts were severe or pervasive. To determine if the environment is hostile, the courts consider the totality of the circumstances, including the conduct’s severity. Severe harassment includes physical touching, implicit physical coercion, extreme language, or obscene behavior.

The harassment must be both unwelcome and offensive to you, as well as being objectively offensive (meaning that a reasonable person would find the harassment hostile and abusive).

To determine whether harassment violates Title VII and other laws, courts consider the following factors:

the frequency of the discriminatory conduct;
its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.

What damages can I get in a sexual harassment case?

Several different types of remedies are available under Title VII of the 1964 Civil Rights Act if you prevail in your sexual harassment claim, including:

Back pay – the lost pay and benefits you would have received absent the adverse personnel action (e.g., salary from the date of a termination or demotion until the date of the trial);
Compensatory damages – damages to compensate emotional distress and reputational harm that you suffered because of the sexual harassment;
Punitive damages – damages to punish the company if it acted with malice or reckless indifference;
Lost future earnings;
Equitable relief, such as an order reinstating you; and/or
Attorney’s fee and litigation expenses

What defenses apply in a sexual harassment case?

The employer is automatically liable and has no defense if a supervisor’s harassment of an employee causes an adverse action such as termination, lost wages, or a suspension.

However, an employer does have a defense (known as a Faragher/Ellerth defense) if a supervisor creates a hostile work environment for an employee (but no adverse action is taken against the employee, like being fired). Under this scenario, the employer may prevail if it proves:

it reasonably tried to prevent and promptly correct the harassing behavior; and
the employee unreasonably failed to take advantage of any preventive or corrective opportunities offered by the employer

Finally, if the situation involves a co-worker (non-supervisory employee) harassing another employee, then the employer will be liable for the harassment if the employer knew, or should have known, about the hostile work environment and failed to promptly correct it.

What is the deadline to file a complaint in a sexual harassment case?

Title VII requires plaintiffs to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged act of retaliation. 42 U.S.C. § 2000e-5(e)(1). The limitations period expands to 300 days where the plaintiff has filed a charge with a state or local agency that is authorized to grant or seek relief from the challenged practice.

Federal employees seeking to remedy discrimination, harassment, or retaliation must contact an EEO counselor to initiate a complaint 45 days from the day the discrimination occurred.

What are emotional distress damages?

Many laws that prohibit employment discrimination, such as Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act (ADA), permit employees to recover money damages for the pain and suffering caused by their employer’s discrimination against them. Emotional distress damages arise most commonly in sexual harassment and hostile work environment claims, but can also be awarded in other types of discrimination claims, including promotion denial and retaliation.

Although the name is self-explanatory, emotional distress damages can cover a range of harms, including:

diagnosed psychiatric condition (such as depression or anxiety disorder);
sleeplessness;
loss of enjoyment of life and mental anguish;
reputational harm; and
strained relationships with family and friends

To receive emotional distress damages you must show that the employer’s discrimination–rather than some other life event–caused the emotional harm.

How do I prove emotional distress damages?

For emotional distress damages, it’s not necessary to have a doctor or psychologist testify at trial; indeed, an employee does not even have to show that they went to see a doctor, psychologist, or other counselor.

Instead, the jury can hear how the employee has been emotionally affected through their own testimony, as well as the words of their friends, families, and coworkers. Through this testimony, the jury can learn about how the employee has changed and been impacted since the employer’s discrimination, harassment, or retaliation occurred.

For this reason, it’s important to keep as much evidence as possible of the emotional distress suffered, whether it is in journals, emails/texts, etc.

Testimony From Medical Professional Testimony Or Documents

Emotional distress damages can also be proven by, for example:

having a treating psychologist, psychiatrist, or counselor testify about the emotional distress;
hiring an expert witness to explain how the discrimination harmed one emotionally;
presenting evidence of a diagnosis such as depression or anxiety disorder; and
demonstrating that medications were prescribed to deal with the mental anguish

As the amount of emotional distress damages sought climbs higher so too does the strength of evidence needed to support that award. Thus, in general, enhanced emotional distress damages can be recovered—and kept on appeal—when medical evidence and/or testimony is present, as opposed to having testimony only from the employee and their friends and family.

When trying to calculate if emotional distress damages are warranted and in what amount, a jury will consider:

the severity of the discrimination/harassment;
the duration of the discrimination/harassment;
the severity and duration of the emotional harm; and
whether one sought professional treatment for the emotional distress (from a psychiatrist, psychologist, counselor, etc.)

Is my employer prohibited from retaliating against me if I report sexual harassment?

Yes, opposing or reporting unlawful employment actions, including sexual harassment, is protected under Title VII. Indeed, employees are protected for reporting employment actions that are not unlawful but that an employee reasonably believes to be unlawful. And employees are protected against retaliation for reporting discrimination during an internal investigation.

What kinds of retaliation are prohibited if I report sexual harassment?

The anti-retaliation provision of Title VII proscribes not only tangible employment actions, such as termination of employment, but also any act that would “have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 52, 68 (2006). Note that retaliatory harassment does not require a showing that the harassment was severe or pervasive.

Must the sexual harassment come from my supervisor?

No, unlawful harassment can be from your direct supervisor, but it can also come from a co-worker or another manager who does not supervise you.

What documents do I need to prove my sexual harassment case?

Although the documents and information discussed below should be available to most employees, it is important not to access or take documents from an employer that may contain trade secrets, personal information about other employees, client lists, or otherwise proprietary/confidential information. Consult with an employment discrimination lawyer if you have questions about which documents may be considered “off limits.”

#1 Job Performance Evaluations

Many companies provide employees with an annual job performance evaluation in which they rate or describe the employee’s work and results. These appraisals can be extremely valuable evidence for an employee to counter the employer’s defenses in an employment discrimination case. In many situations, to explain the action a company took against an employee, such as denying a promotion, cutting their bonus or stock awards, or terminating their employment, the company will claim that it did so in response to the employee’s job performance problems. But if the employee can point to recent positive job performance review(s), this helps discredit the company’s explanation and demonstrates that the claim of poor performance is instead an after-the-fact pretext for discrimination. Similarly, any awards given to the employee by the company serve as a potent retort to claims of inadequate job performance.

#2 Emails, Texts, Slack Messages, etc.

One of the most ubiquitous—and powerful—pieces of evidence are contemporaneous emails (or texts and other types of messaging) regarding particular projects or workplace decisions that are at issue in the employment discrimination claim. Consider a scenario where the company claims it denied a promotion to the employee because they supposedly performed poorly on a specific proposal. If the employee has emails from their managers praising their work on the proposal in question, then the company will be hard-pressed to carry the day on its justification for why it denied the promotion. This in turn can help demonstrate that the employee’s age (or race, gender, etc.) was the true motivation for the company’s action.

Likewise, the pervasive use of email and texts can cause its users to “let their guard down” and occasionally say things in email that reveal their true mindset, which is indispensable in an employment discrimination case.

#3 Arbitration Agreement

While the arbitration agreement is not necessarily evidence, it does play a key role in determining whether your case will be heard in open court before a jury of your peers, or behind closed doors in private arbitration. There are pros and cons to arbitration that will be discussed in another article. And arbitrators do sometimes award large amounts to employees. As a general matter, however, arbitrators are less prone to award big verdicts to employees as compared to juries. Many large companies require employees to sign an arbitration agreement when they are hired or during their employment, and often the employee does not even remember signing the document. Review the arbitration agreement carefully to better understand precisely which claims must be arbitrated as certain agreements do not cover all employment claims and other claims, such as whistleblower retaliation under the Sarbanes-Oxley Act (SOX), are not subject to mandatory arbitration.

#4 Demographics Of, And Prior Lawsuits Against, The Company

Although demographics and prior lawsuits are not technically “documents,” this type of information can be critical background evidence in an employment discrimination case. Take the example of a glass ceiling/promotion discrimination case involving a senior vice president role. If the company lacks women in these senior roles, this can be relevant evidence in a promotion discrimination claim in both an intentional discrimination (disparate treatment) and unintentional discrimination (disparate impact) context. If 50% of the vice presidents are women yet only 10% of senior vice presidents are women, this evidence strongly supports an inference of discrimination.

Likewise, if the company has previously been the subject of promotion discrimination lawsuits this also can support the claim. Courts will look at a variety of factors to determine if the jury can hear this evidence, including whether it involved the same decision-makers, how recently it occurred, if a verdict was rendered, etc. This information is available in a variety of forums, including a simple Google query and searching court websites through services like Public Access to Court Electronic Records (Pacer).

During discovery, a much broader range of documents and information will be exchanged, but these four categories of documents should be available to an employee relatively early in the dispute and can go a long way toward deciding the fate of an employment discrimination case.

If you have experienced employment discrimination or whistleblower retaliation, call a top rated employment attorney at (202) 769-1681, or start your preliminary consultation online.

Can I recover punitive damages in a sexual harassment case?

You cannot recover punitive damages in a discrimination case brought against the federal government.

Age Discrimination

What laws cover age discrimination at work?

Age discrimination is one of the most common forms of illegal employment discrimination. A key federal law, the Age Discrimination in Employment Act (ADEA), makes it illegal for employers to discriminate against employees who are 40 years and older. Likewise, many states and local municipalities have laws that make age discrimination unlawful as well. It is important to consult with an experienced age discrimination lawyer to understand your legal options.

How do I prove age discrimination at my job?

To prove that you have been illegally discriminated against in hiring and promotions due to your age, an employee must show that:

they belong to a protected class (over 40 years old)
they applied for and were qualified for a job for which the employer was seeking applicants
despite their qualifications they were rejected
the position remained open after their rejection and the employer continued to seek applicants similar to their qualifications.

The employer must then show a legitimate reason for the taking the employment action. In response, an employee can show by preponderance of the evidence that the legitimate reasons offered by the employer were not its true reason, but were a pretext for discrimination.

Approximately 1 in 5 discrimination charges received by the Equal Employment Opportunity Commission (EEOC) are age discrimination claims, and in 2020 the EEOC received over 14,000 age discrimination charges.

they belong to a protected class (over 40 years old)
they applied for and were qualified for a job for which the employer was seeking applicants
despite their qualifications they were rejected
the position remained open after their rejection and the employer continued to seek applicants similar to their qualifications.

What is the deadline to file in age discrimination case?

For an age discrimination case, an employee needs to file a charge of discrimination within 180 calendar days from the day the discrimination took place. The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis.

NOTE: For age discrimination, the filing deadline is only extended to 300 days if there is a state law prohibiting age discrimination in employment and a state agency or authority enforcing that law. The deadline is not extended if only a local law prohibits age discrimination.

NOTE II: federal employees and applicants have a different complaint process, and generally must contact an agency EEO Counselor within 45 days of the discriminatory act.

Talk with an age discrimination lawyer to maximize your potential damages. If you have experienced workplace discrimination or whistleblower retaliation, call us at (202) 769-1681, or start your preliminary consultation online

When is an employer’s reason for firing you a pretext or excuse for discrimination?

There are a number of different ways to prove pretext in an employment discrimination case. When we talk about pretext, what we mean is that the employer has put forward an explanation, for example, why they didn’t promote you and now under the pretext analysis, you need to show why that was an untrue statement or was simply a pretext for discrimination.

Some ways that you can do that include showing that similarly situated employees were treated better than you. Showing that the reason that they had given, that the employers given, is just unworthy of credence, it’s not believable, and it doesn’t make sense. Or, in certain cases there might even be documents that show that their stated reason was actually false.

Pretext can be shown by “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (citation omitted); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (“[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”).

What is an adverse employment action?

The facts and circumstances of each case determine whether a particular action rises to the level of an adverse employment action. Some common examples include termination of employment; demotion; pay reduction; or suspension. An experienced age discrimination lawyer can help assess your claim.

Depending on the context, the EEOC has found that the following examples may also constitute an adverse employment action:

work-related threats, warnings, or reprimands;
negative or lowered evaluations;
transfers to less prestigious or desirable work or work locations;
making false reports to government authorities or in the media;
filing a civil action;
threatening reassignment; scrutinizing work or attendance more closely than that of other employees, without justification;
removing supervisory responsibilities;
engaging in abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not yet “severe or pervasive” as required for a hostile work environment; or
taking (or threatening to take) a materially adverse action against a close family member (who would then also have a retaliation claim, even if not an employee).

What is a "similarly situated employee?"

In an employment discrimination or whistleblower retaliation case, one of the factors a court will likely analyze is how the company treated you compared to other “similarly situated employees.”

The precise definition of who is a similarly situated employee varies depending on the specific legal claim and in which federal court you file your case. Generally, however:

to be similarly situated to another employee, [the plaintiff] must show that the employee is directly comparable in all material respects.

How to tell if someone counts as a “similarly situated employee”

To figure out if one of your co-workers qualifies as a “similarly situated employee,” a court will carefully review the particular facts in your case. Each case and each work environment is different, but some of the criteria that courts evaluate to see if you have identified a similarly situated employee who the company treated better are:

do you share the same supervisor;
do you perform very similar job tasks and responsibilities (both the number and weight) as the other person;
do you have similar job performance evaluations and disciplinary history; and
is your experience level (including supervisory experience) the same as the other person

Most courts do not require an exact match on these criteria, but the more similar you are to the other person, the more likely a court will deem them a “similarly situated employee.”

What does it mean to "mitigate your damages?"

Under the ADEA, Title VII, and related anti-discrimination laws, courts are generally required to award lost pay to a victim of discrimination. But Title VII also mandates that the employee has a duty to minimize their economic damages. Specifically, the statute requires that “interim earnings” the employee could have earned “with reasonable diligence” shall reduce the backpay award. 42 U.S.C. § 2000e–5(g)).

Notably, the employer bears the burden of proof to show both the amounts that must be deducted from your back pay award and that you failed to make a reasonable effort to find a new job.

#1 Job Performance Evaluations

#2 Emails, Texts, Slack Messages, etc.

#3 Arbitration Agreement

#4 Demographics Of, And Prior Lawsuits Against, The Company

If you have experienced employment discrimination or whistleblower retaliation, call a top rated employment attorney at (202) 769-1681, or start your preliminary consultation online.

Corporate Whistleblower Retaliation

What laws protect corporate whistleblowers?

Corporate whistleblowers are one of the most important and effective checks on fraud against the government and/or shareholders. Yet a whistleblower is often met with hostility and retaliation from within the company.

In response, Congress has enacted a number of laws designed to protect employees who blow the whistle on corporate fraud.

One of the key statutes is the Sarbanes Oxley Act of 2002 (SOX). Under SOX, employees who work for publicly traded companies or companies that are required to file certain reports with the Securities and Exchange Commission (SEC) are protected from being fired or otherwise retaliated against if they report conduct that they reasonably believe constitutes mail, wire, bank, or securities fraud, a violation of any SEC rule or regulation, or a violation of any provision of federal law relating to fraud against shareholders.

Other laws protecting corporate whistleblowers include the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). Under Dodd-Frank, a whistleblower has a private right of action that allows them to file a retaliation complaint in federal court.

Talk with a corporate whistleblower lawyer to maximize your potential damages. If you have experienced workplace discrimination or whistleblower retaliation, call us at (202) 769-1681, or start your preliminary consultation online.

What remedies are available in a corporate whistleblower retaliation case?

Under SOX, a whistleblower can receive the following remedies if they experience retaliation:

reinstatement with the same seniority status that the employee would have had, but for the retaliation;
back pay, with interest; and
compensation for any special damages sustained as a result of the retaliation, including emotional distress, litigation costs, expert witness fees, and reasonable attorney fees.

Notably, the emotional distress damages available under SOX are uncapped (unlike some other anti-retaliation laws).

The remedies available under Dodd-Frank include double back pay (with interest), reinstatement, reasonable attorneys’ fees, and reimbursement for certain costs in connection with the litigation.

What companies are covered by the Sarbanes Oxley Act (SOX)?

Section 806 of SOX covers companies that have a class of securities registered under Section 12 of the Securities Exchange Act or are required to file reports under Section 15(d) of that Act. The company’s subsidiaries, contractors, subcontractors, or agents may also be covered.

How do I prove corporate whistleblower retaliation?

To establish a retaliation claim, a whistleblower must show:

they engaged in protected activity
the employer knew they engaged in the protected activity
they suffered an adverse employment action
the protected activity was a “contributing factor” in the adverse employment action

If the whistleblower makes this showing by a preponderance of the evidence, then the employer must prove by “clear and convincing evidence” that it would have taken the same adverse employment action even if the employee had not engaged in protected activity.

How do I file a SOX complaint?

An employee must file a complaint with the Department of Labor’s Occupational Safety and Health Administration (OSHA) within 180 days after a violation of SOX (0r 180 days after after the employee became aware of the violation). An employee who believes that they have been retaliated against in violation of SOX may file a complaint with OSHA.

After it receives the complaint, OSHA will first review it to determine whether it is a valid complaint allegation (e.g., timeliness or jurisdiction). All complaints are investigated as directed by the statutory requirements – see 29 CFR Part 1980.104.

Can I file a SOX complaint in court?

Yes. After OSHA issues its findings, either party may request a hearing before a Department of Labor administrative law judge (ALJ). The ALJ’s decision and order may be appealed to the Department’s Administrative Review Board. If a final agency order is not issued within 180 days from the date the employee’s complaint is filed, then the employee may file the complaint in the appropriate United States district court.

What is "contributing factor" causation?

A contributing factor is a factor which, alone or with other factors, in any way affects the outcome of a decision.

Contributing factor causation can be established by, for example:

Close timing (temporal proximity) between the protected activity and the adverse action.
Evidence of hostility towards the protected activity.
Disparate treatment of whistleblower compared to other employees following protected activity.
Changes in employer’s treatment of whistleblower after the protected activity.
Indicators that employer’s stated reasons for the adverse action are pretext.

What is a "similarly situated employee?"

In an employment discrimination or whistleblower retaliation case, one of the factors a court will likely analyze is how the company treated you compared to other “similarly situated employees.”

The precise definition of who is a similarly situated employee varies depending on the specific legal claim and in which federal court you file your case. Generally, however:

to be similarly situated to another employee, [the plaintiff] must show that the employee is directly comparable in all material respects.

How to tell if someone counts as a “similarly situated employee”

do you share the same supervisor;
do you perform very similar job tasks and responsibilities (both the number and weight) as the other person;
do you have similar job performance evaluations and disciplinary history; and
is your experience level (including supervisory experience) the same as the other person

Most courts do not require an exact match on these criteria, but the more similar you are to the other person, the more likely a court will deem them a “similarly situated employee.”

What are emotional distress damages?

Many laws that prohibit employment discrimination and whistleblower retaliation, such as SOX, AIR21, CPSIA, Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act (ADA), permit employees to recover money damages for the pain and suffering caused by their employer’s discrimination against them.

Although the name is self-explanatory, emotional distress damages can cover a range of harms, including:

diagnosed psychiatric condition (such as depression or anxiety disorder);
sleeplessness;
loss of enjoyment of life and mental anguish;
reputational harm; and
strained relationships with family and friends

To receive emotional distress damages you must show that the employer’s discrimination or retaliation–rather than some other life event–caused the emotional harm.

What documents do I need to prove my corporate whistleblower retaliation case?

#1 Written Internal Complaint To Establish Whistleblowing Activity

To establish a retaliation claim, a corporate whistleblower must generally show:

they engaged in protected activity (that is, complained about potentially unlawful conduct);
the employer knew they engaged in the protected activity;
they suffered an adverse employment action; and
the protected activity was a “contributing factor” in the adverse employment action

#2 Job Performance Evaluations To Combat Employer’s “Same Action” Defense

#3 Emails, Texts, And Slack Messages To Demonstrate The Company’s Retaliatory Intent

If you have experienced employment discrimination or whistleblower retaliation, call a top rated employment attorney at (202) 769-1681, or start your preliminary consultation online.

Gender Discrimination

What laws apply in employment gender discrimination cases?

A variety of federal anti-discrimination laws apply in a sex/gender discrimination case. These laws include Title VII of the 1964 Civil Rights Act, the Equal Pay Act, and the Pregnancy Discrimination Act. Similarly, a host of state and local laws also prohibit sex/gender discrimination in employment. Talk with an experienced gender discrimination lawyer to explore your legal options.

How do I prove gender discrimination at work?

To establish a prima facie case of gender discrimination based on intentional discrimination an employee must show that they:

are a member of a protected class,
suffered an adverse employment action,
met their employer’s legitimate expectations at the time of the adverse employment action, and
were treated differently from similarly situated employees outside their protected class.

If these elements are met then the employer must articulate a non-discriminatory reason for the adverse employment action. If an employer does so, then the employee has to prove by a preponderance of the evidence that the employer’s articulated reason is a mere pretext/ excuse for discrimination.

It is important to consult with an experienced gender discrimination lawyer to understand your legal options.

What remedies are available for gender discrimination?

Back pay damages for wages lost due to the harassment
Emotional distress damages (also referred to as compensatory damages)
Punitive damages designed to punish the employer for especially reckless or malicious harassment
Reasonable attorney’s fees

Consult with a gender discrimination lawyer to maximize your potential damages. If you have experienced workplace discrimination or whistleblower retaliation, call us at (202) 769-1681, or start your preliminary consultation online.

What is glass ceiling discrimination?

Perhaps you’ve heard the phrase “glass ceiling” used around the office and in the media, and wondered what exactly it meant in a legal context. The answer is that a glass ceiling generally refers to an unfair, artificial barrier that prevents certain employees (women; people of color; LGBT) from fairly competing for upper management jobs in companies. In practice, it keeps qualified employees from reaching their full potential and, depending on applicable law, illegally blocks them from occupying the best-paid and most powerful positions. The glass ceiling can be caused by, among other things:

entrenched attitudes/stereotypes about what type(s) of people should get the “top” jobs at the company;

subjective/hard to define qualifications for promotions that introduce conscious or unconscious biases into decision-making; and/or

a lack of networking and mentoring opportunities for women, people of color, and LGTB individuals.

Title VII of the 1964 Civil Rights Act, as well as other federal and state laws, make it illegal for an employer to use promotion practices that create a glass ceiling.

What is a "similarly situated" employee?

In an employment discrimination or whistleblower retaliation case, one of the factors a court will likely analyze is how the company treated you compared to other “similarly situated employees.”

The precise definition of who is a similarly situated employee varies depending on the specific legal claim and in which federal court you file your case. Generally, however:

to be similarly situated to another employee, [the plaintiff] must show that the employee is directly comparable in all material respects.

How to tell if someone counts as a “similarly situated employee”

do you share the same supervisor;
do you perform very similar job tasks and responsibilities (both the number and weight) as the other person;
do you have similar job performance evaluations and disciplinary history; and
is your experience level (including supervisory experience) the same as the other person

Most courts do not require an exact match on these criteria, but the more similar you are to the other person, the more likely a court will deem them a “similarly situated employee.”

How do I prove emotional distress damages?

For this reason, it’s important to keep as much evidence as possible of the emotional distress suffered, whether it is in journals, emails/texts, etc.

Testimony From Medical Professional Testimony Or Documents

Emotional distress damages can also be proven by, for example:

having a treating psychologist, psychiatrist, or counselor testify about the emotional distress;
hiring an expert witness to explain how the discrimination harmed one emotionally;
presenting evidence of a diagnosis such as depression or anxiety disorder; and
demonstrating that medications were prescribed to deal with the mental anguish

When trying to calculate if emotional distress damages are warranted and in what amount, a jury will consider:

the severity of the discrimination/harassment;
the duration of the discrimination/harassment;
the severity and duration of the emotional harm; and
whether one sought professional treatment for the emotional distress (from a psychiatrist, psychologist, counselor, etc.)

How do I prove an Equal Pay Act claims?

A prima facie case of Equal Pay Act discrimination involves showing “(1) the defendant-employer paid different wages to an employee of the opposite sex (2) for equal work on jobs requiring equal skill, effort, and responsibility, which jobs (3) all are performed under similar working conditions.” EEOC v. Md. Ins. Admin., 879 F.3d 114, 120 (4th Cir. 2018).

How do I prove Title VII retaliation?

To prove a prima facie/initial complaint of retaliation, an employee must show: “(i) that [she] engaged in protected activity, (ii) the [her employer] took adverse action against [her], and (iii) that a causal relationship existed between the protected activity and the adverse employment activity.” Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 250 (4th Cir. 2015). If this showing is made, the employer must then demonstrate that “its purportedly retaliatory action was in fact the result of a legitimate non-retaliatory reason.” Id. If this burden is met, then the employee has to prove that these nonretaliatory reasons “were not its true reasons but were a pretext for discrimination.” Id.

What is glass ceiling discrimination?

entrenched attitudes/stereotypes about what type(s) of people should get the “top” jobs at the company;

subjective/hard to define qualifications for promotions that introduce conscious or unconscious biases into decision-making; and/or

a lack of networking and mentoring opportunities for women, people of color, and LGTB individuals.

Title VII of the 1964 Civil Rights Act, as well as other federal and state laws, make it illegal for an employer to use promotion practices that create a glass ceiling.

How do I prove glass ceiling / promotion discrimination?

The first step to proving your glass ceiling discrimination case is to show that:

You are a member of a protected class (for example, a woman, African-American, Hispanic)

You applied for and were qualified for the promotion; and
After you were rejected, the position remained open or was filled by a person with similar qualifications.

If you make the initial showing described above, then your employer is required to give a reason why it did not select you for the promotion. Importantly, at this stage, your employer can simply offer a reason, they do not have to actually prove that this reason was what actually motivated their decision.

So, for example, your company could claim that it did not promote you because they expected higher earnings from the unit you supervised; you did not yet possess enough experience for the position; you lacked sufficient leadership skills, etc.

If your employer proffers a legitimate, non-discriminatory reason for why they did not promote you—and they almost always do—you must then show that its reason was not the true basis for the decision. That is, you must prove that its claimed reason was a pretext for discrimination. Not all federal courts apply the same analysis regarding pretext, but generally pretext can be shown by:

Evidence that you were substantially better qualified than the person selected;

Similarly situated employees of a different gender, race, national origin, etc. were treated better;

Shifting and inconsistent reasons offered by the employer;

Exposing other flaws in the employer’s stated reason (for example, significant deviations from normal procedures in the promotion process);

However, it is not enough to simply nitpick about relatively minor flaws in the selection process.

The ultimate question—which you must prove by a preponderance of the evidence—is whether, based on all the evidence presented, a jury could reasonably infer that your employer discriminated against you by not selecting you for the promotion.

What documents do I need to prove my glass ceiling/gender discrimination case?

Although the documents and information discussed below should be available to most employees, it is important not to access or take documents from an employer that may contain trade secrets, personal information about other employees, client lists, or otherwise proprietary/confidential information. Consult with an employment discrimination lawyer if you have questions about which documents may be considered “off limits.”

#1 Job Performance Evaluations

#2 Emails, Texts, Slack Messages, etc.

#3 Arbitration Agreement

#4 Demographics Of, And Prior Lawsuits Against, The Company

If you have experienced employment discrimination or whistleblower retaliation, call a top rated employment attorney at (202) 769-1681, or start your preliminary consultation online.

Can I recover punitive damages in a gender discrimination case?

You cannot recover punitive damages in a discrimination case brought against the federal government.

How do I prove pretext in a gender discrimination case?

Race Discrimination

How do I prove race discrimination at work?

To establish a prima facie case of race discrimination based on intentional discrimination an employee must show that they:

are a member of a protected class,
suffered an adverse employment action,
met their employer’s legitimate expectations at the time of the adverse employment action, and
were treated differently from similarly situated employees outside their protected class.

It is important to consult with an experienced race discrimination employment lawyer to understand your legal options.

What remedies are available for employment race discrimination?

Back pay damages for wages lost due to the harassment
Emotional distress damages (also referred to as compensatory damages)
Punitive damages designed to punish the employer for especially reckless or malicious harassment
Reasonable attorney’s fees

If you have experienced workplace discrimination or whistleblower retaliation, call us at (202) 769-1681, or start your preliminary consultation online.

Does it matter whether I am harassed by a supervisor versus co-worker?

It matters whether the harassment you suffered was perpetrated by a supervisor versus a coworker. T the employer may automatically be liable if a supervisor’s harassment of an employee causes an adverse action such as termination, lost wages, or a suspension.

If a supervisor creates a hostile work environment for an employee (with no adverse action like being fired), then the employer can prevail only if it can prove:

it reasonably tried to prevent and promptly correct the harassing behavior; and
the employee unreasonably failed to take advantage of any preventive or corrective opportunities offered by the employer, such as reporting the harassment to the employer.

Talk with an employment race discrimination lawyer to maximize your potential damages. If you have experienced workplace discrimination or whistleblower retaliation, call us at (202) 769-1681, or start your preliminary consultation online

What is a hostile work environment?

What is the deadline to file an EEOC charge of discrimination?

Federal employees seeking to remedy discrimination, harassment, or retaliation must contact an EEO counselor to initiate a complaint 45 days from the day the discrimination occurred.

What is a "similarly situated employee?"

In an employment discrimination or whistleblower retaliation case, one of the factors a court will likely analyze is how the company treated you compared to other “similarly situated employees.”

The precise definition of who is a similarly situated employee varies depending on the specific legal claim and in which federal court you file your case. Generally, however:

to be similarly situated to another employee, [the plaintiff] must show that the employee is directly comparable in all material respects.

How to tell if someone counts as a “similarly situated employee”

do you share the same supervisor;
do you perform very similar job tasks and responsibilities (both the number and weight) as the other person;
do you have similar job performance evaluations and disciplinary history; and
is your experience level (including supervisory experience) the same as the other person

Most courts do not require an exact match on these criteria, but the more similar you are to the other person, the more likely a court will deem them a “similarly situated employee.”

How do I prove emotional distress damages

For this reason, it’s important to keep as much evidence as possible of the emotional distress suffered, whether it is in journals, emails/texts, etc.

Testimony From Medical Professional Testimony Or Documents

Emotional distress damages can also be proven by, for example:

having a treating psychologist, psychiatrist, or counselor testify about the emotional distress;
hiring an expert witness to explain how the discrimination harmed one emotionally;
presenting evidence of a diagnosis such as depression or anxiety disorder; and
demonstrating that medications were prescribed to deal with the mental anguish

When trying to calculate if emotional distress damages are warranted and in what amount, a jury will consider:

the severity of the discrimination/harassment;
the duration of the discrimination/harassment;
the severity and duration of the emotional harm; and
whether one sought professional treatment for the emotional distress (from a psychiatrist, psychologist, counselor, etc.)

How do I prove Title VII retaliation?

What documents do I need to prove my race discrimination case?

Although the documents and information discussed below should be available to most employees, it is important not to access or take documents from an employer that may contain trade secrets, personal information about other employees, client lists, or otherwise proprietary/confidential information. Consult with an employment discrimination lawyer if you have questions about which documents may be considered “off limits.”

#1 Job Performance Evaluations

#2 Emails, Texts, Slack Messages, etc.

#3 Arbitration Agreement

#4 Demographics Of, And Prior Lawsuits Against, The Company

If you have experienced employment discrimination or whistleblower retaliation, call a top rated employment attorney at (202) 769-1681, or start your preliminary consultation online.

Can I recover punitive damages in a race discrimination case?

You cannot recover punitive damages in a discrimination case brought against the federal government.

How do I prove pretext in a race discrimination case?

Disability Discrimination

What laws cover disability discrimination at work?

Disability discrimination remains a persistent problem in many workplaces. An important federal law, the Americans with Disabilities Act (ADA), prohibits discrimination against employees with disabilities. Likewise, many states and local municipalities have laws that make disability discrimination unlawful as well. A separate law, the Rehabilitation Act of 1973, covers employees who work for the federal government. It is important to consult with an experienced disability discrimination lawyer to understand your legal options.

How do I prove disability discrimination at my job?

It is illegal for an employer to treat a qualified individual who is an employee or applicant unfavorably because they have a disability.

Also, if an employer treats an applicant or employee less favorably because they have a history of a disability (such as a past serious illness), or because they are believed to have a physical or mental impairment that is long lasting and more than minor, then this too may be unlawful.

An employer must provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer (“undue hardship”).

The ADA also protects people who do not have a disability from “associational discrimination” based on their relationship with a person with a disability. For example, it is illegal to discriminate against an employee because their spouse has a disability.

To prove that you have been illegally discriminated against due to your disability, you must show that

the employer is subject to the ADA;
the employee is disabled as defined by the ADA, has a record of impairment, or is perceived to be so by the employer;
the employee is able to perform essential functions of the job, either with or without reasonable accommodation; and
the employer took an adverse employment action against the employee because of, in whole or in part, the employee’s protected disability.

The ADA and the EEOC’s interpretation of it require an employer to provide reasonable accommodations to employees and job applicants with a disability, unless doing so would cause significant difficulty or expense for the employer.

According to the EEOC, a reasonable accommodation is any change in the work environment to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.

Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired.

What remedies are available for disability discrimination?

Back pay damages for wages lost due to the harassment
emotional distress damages (also referred to as compensatory damages)
punitive damages designed to punish the employer for especially reckless or malicious harassment.
Reasonable attorney’s fees

It is important to speak with a disability discrimination lawyer to maximize your potential damages. If you have experienced workplace discrimination or whistleblower retaliation, call us at (202) 769-1681, or start your preliminary consultation online.

What is a "similarly situated employee?"

In an employment discrimination or whistleblower retaliation case, one of the factors a court will likely analyze is how the company treated you compared to other “similarly situated employees.”

The precise definition of who is a similarly situated employee varies depending on the specific legal claim and in which federal court you file your case. Generally, however:

to be similarly situated to another employee, [the plaintiff] must show that the employee is directly comparable in all material respects.

How to tell if someone counts as a “similarly situated employee”

do you share the same supervisor;
do you perform very similar job tasks and responsibilities (both the number and weight) as the other person;
do you have similar job performance evaluations and disciplinary history; and
is your experience level (including supervisory experience) the same as the other person

Most courts do not require an exact match on these criteria, but the more similar you are to the other person, the more likely a court will deem them a “similarly situated employee.”

What are emotional distress damages?

Although the name is self-explanatory, emotional distress damages can cover a range of harms, including:

diagnosed psychiatric condition (such as depression or anxiety disorder);
sleeplessness;
loss of enjoyment of life and mental anguish;
reputational harm; and
strained relationships with family and friends

To receive emotional distress damages you must show that the employer’s discrimination–rather than some other life event–caused the emotional harm.

What documents do I need to prove my ADA / disability discrimination case?

Although the documents and information discussed below should be available to most employees, it is important not to access or take documents from an employer that may contain trade secrets, personal information about other employees, client lists, or otherwise proprietary/confidential information. Consult with an employment discrimination lawyer if you have questions about which documents may be considered “off limits.”

#1 Job Performance Evaluations

#2 Emails, Texts, Slack Messages, etc.

#3 Arbitration Agreement

#4 Demographics Of, And Prior Lawsuits Against, The Company

If you have experienced employment discrimination or whistleblower retaliation, call a top rated employment attorney at (202) 769-1681, or start your preliminary consultation online.

Who is a "qualified individual" under the ADA?

A “qualified individual” is defined as a person who, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”

Can I recover punitive damages in an ADA / disability discrimination case?

Yes. Under the ADA, you can recover punitive damages if you’re employed in the private sector. First, you’re going to have to prove to the court that you suffered disability discrimination. In addition to that, to receive punitive damages, you next need to prove that you suffered a particularly egregious form of discrimination. That is, your employer acted with malice or reckless indifference in how they treated you. Because ultimately punitive damages are designed to punish the employer for particularly bad forms of discrimination.

You cannot recover punitive damages in a discrimination case brought against the federal government.

LGBTQ+ Discrimination

How do I prove LGBTQ+ discrimination at work?

To establish a prima facie case of race discrimination based on intentional discrimination an employee must show that they:

are a member of a protected class,
suffered an adverse employment action,
met their employer’s legitimate expectations at the time of the adverse employment action, and
were treated differently from similarly situated employees outside their protected class.

It is important to consult with an experienced race discrimination employment lawyer to understand your legal options.

What remedies are available for LGBTQ+ discrimination?

Back pay damages for wages lost due to the harassment
Emotional distress damages (also referred to as compensatory damages)
Punitive damages designed to punish the employer for especially reckless or malicious harassment
Reasonable attorney’s fees

If you have experienced workplace discrimination or whistleblower retaliation, call us at (202) 769-1681, or start your preliminary consultation online.

Does it matter whether I am harassed by a supervisor versus co-worker?

If a supervisor creates a hostile work environment for an employee (with no adverse action like being fired), then the employer can prevail only if it can prove:

it reasonably tried to prevent and promptly correct the harassing behavior; and
the employee unreasonably failed to take advantage of any preventive or corrective opportunities offered by the employer, such as reporting the harassment to the employer.

What is a hostile work environment?

What is the deadline to file an EEOC charge of discrimination?

Federal employees seeking to remedy discrimination, harassment, or retaliation must contact an EEO counselor to initiate a complaint 45 days from the day the discrimination occurred.

What is a "similarly situated employee?"

In an employment discrimination or whistleblower retaliation case, one of the factors a court will likely analyze is how the company treated you compared to other “similarly situated employees.”

The precise definition of who is a similarly situated employee varies depending on the specific legal claim and in which federal court you file your case. Generally, however:

to be similarly situated to another employee, [the plaintiff] must show that the employee is directly comparable in all material respects.

How to tell if someone counts as a “similarly situated employee”

do you share the same supervisor;
do you perform very similar job tasks and responsibilities (both the number and weight) as the other person;
do you have similar job performance evaluations and disciplinary history; and
is your experience level (including supervisory experience) the same as the other person

Most courts do not require an exact match on these criteria, but the more similar you are to the other person, the more likely a court will deem them a “similarly situated employee.”

What are emotional distress damages?

Many laws that prohibit employment discrimination, such as Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act (ADA), permit employees to recover money damages for the pain and suffering caused by their employer’s discrimination against them. Emotional distress damages arise most commonly in hostile work environment claims, but can also be awarded in other types of discrimination claims, including promotion denial and retaliation.

Although the name is self-explanatory, emotional distress damages can cover a range of harms, including:

diagnosed psychiatric condition (such as depression or anxiety disorder);
sleeplessness;
loss of enjoyment of life and mental anguish;
reputational harm; and
strained relationships with family and friends

To receive emotional distress damages you must show that the employer’s discrimination–rather than some other life event–caused the emotional harm.

How do I prove Title VII retaliation?

What documents do I need to prove my LGBTQ+ discrimination case?

Although the documents and information discussed below should be available to most employees, it is important not to access or take documents from an employer that may contain trade secrets, personal information about other employees, client lists, or otherwise proprietary/confidential information. Consult with an employment discrimination lawyer if you have questions about which documents may be considered “off limits.”

#1 Job Performance Evaluations

#2 Emails, Texts, Slack Messages, etc.

#3 Arbitration Agreement

#4 Demographics Of, And Prior Lawsuits Against, The Company

If you have experienced employment discrimination or whistleblower retaliation, call a top rated employment attorney at (202) 769-1681, or start your preliminary consultation online.

Can I recover punitive damages in a LGBTQ+ discrimination case?

You cannot recover punitive damages in a discrimination case brought against the federal government.

How do I prove pretext in a LGBTQ+ discrimination case?

Airline Safety Whistleblower

What law protects airline safety whistleblowers?

The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21) prohibits retaliation against air carrier industry employees who report information related to air carrier safety.

It is important to consult with an experienced disability discrimination lawyer to understand your legal options.

How do I prove my airline retaliated against me for blowing the whistle?

To establish a prima facie case under AIR21, an employee need only show (1) they engaged in protected activity; (2) the employer knew about that activity; (3) the employer subjected them to an adverse employment action; and (4) the protected activity contributed to the adverse action. 49 U.S.C. § 42121(b).

What remedies are available in AIR21 cases?

Under AIR21, a whistleblower can receive the following remedies if they experience retaliation:

reinstatement with the same seniority status that the employee would have had, but for the retaliation;
back pay, with interest; and
compensation for any special damages sustained as a result of the retaliation, including emotional distress, litigation costs, expert witness fees, and reasonable attorney fees.

Notably, the emotional distress damages available under AIR21 are uncapped (unlike some other anti-retaliation laws).

It is important to speak with an airline safety whistleblower lawyer to maximize your potential damages. If you have experienced workplace discrimination or whistleblower retaliation, call us at (202) 769-1681, or start your preliminary consultation online.

What is a "similarly situated employee?"

In an employment discrimination or whistleblower retaliation case, one of the factors a court will likely analyze is how the company treated you compared to other “similarly situated employees.”

The precise definition of who is a similarly situated employee varies depending on the specific legal claim and in which federal court you file your case. Generally, however:

to be similarly situated to another employee, [the plaintiff] must show that the employee is directly comparable in all material respects.

How to tell if someone counts as a “similarly situated employee”

do you share the same supervisor;
do you perform very similar job tasks and responsibilities (both the number and weight) as the other person;
do you have similar job performance evaluations and disciplinary history; and
is your experience level (including supervisory experience) the same as the other person

Most courts do not require an exact match on these criteria, but the more similar you are to the other person, the more likely a court will deem them a “similarly situated employee.”

What are emotional distress damages?

Many laws that prohibit whistleblower retaliation and employment discrimination, such as AIR21, SOX, Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act (ADA), permit employees to recover money damages for the pain and suffering caused by their employer’s retaliation and/or discrimination against them.

Although the name is self-explanatory, emotional distress damages can cover a range of harms, including:

diagnosed psychiatric condition (such as depression or anxiety disorder);
sleeplessness;
loss of enjoyment of life and mental anguish;
reputational harm; and
strained relationships with family and friends

To receive emotional distress damages you must show that the employer’s retaliation or discrimination–rather than some other life event–caused the emotional harm.

What documents do I need to prove my AIR21 / airline safety whistleblower retaliation case?

#1 Written Internal Complaint To Establish Whistleblowing Activity

To be clear, the various laws protecting whistleblowers from retaliation, such as AIR21, do not require employees to file a written, internal complaint to the company about potentially unlawful conduct. If, however, a written internal complaint exists, this document can help make an airline whistleblower retaliation case even stronger. Note that whistleblower retaliation claims under certain statutes, such as the Dodd-Frank Act, require the employee to externally report their complaint to the U.S. Securities and Exchange Committee (SEC), meaning that submitting an internal complaint solely to the company is insufficient to establish a retaliation claim. Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767 (2018).

To establish a retaliation claim, an AIR21 airline whistleblower must generally show:

they engaged in protected activity (that is, complained about potentially unlawful conduct);
the employer knew they engaged in the protected activity;
they suffered an adverse employment action; and
the protected activity was a “contributing factor” in the adverse employment action

#2 Job Performance Evaluations To Combat Employer’s “Same Action” Defense

#3 Emails, Texts, And Slack Messages To Demonstrate The Company’s Retaliatory Intent

During discovery in a whistleblower retaliation case, whether it is in court or before an administrative agency, a much broader range of documents and information will be exchanged. But airline whistleblowers should have access to the above three categories of documents at a relatively early stage in the dispute, which should allow for a better and timely assessment regarding the potential strength of the case.

If you have experienced employment discrimination or whistleblower retaliation, call a top rated employment attorney at (202) 769-1681, or start your preliminary consultation online.

Consumer Product Safety Whistleblower Retaliation

What laws protect consumer products safety whistleblowers?

The consumer products industry is sprawling and countless employees play a pivotal role in making sure products —ranging from toys to coffee makers to power tools — do not pose a threat to people using them. A relatively unsung law, the Consumer Products Safety Improvement Act (CPSIA), 15 U.S.C. § 2087, provides crucial protection against retaliation for whistleblowers.

The CPSIA mandates that consumer product companies cannot retaliate against employees who report concerns about safety issues and other potential violations of the Consumer Product Safety Act (CPSA).

Talk with a consumer products whistleblower lawyer to maximize your potential damages. If you have experienced workplace discrimination or whistleblower retaliation, call us at (202) 769-1681, or start your preliminary consultation online.

What remedies are available in a consumer products safety whistleblower retaliation case?

If an employee proves that their whistleblowing was a “contributing factor” in the company’s decision to retaliate against them, and the company does not prove by “clear and convincing” evidence it would have taken the same action absent the protected disclosures, then the employee can be awarded:

reinstatement to their job (if they have been discharged);
back pay (lost earnings), with interest;
compensatory damages, including for emotional distress; and
attorneys’ fees.

15 U.S.C. § 2087(b)(4)(A-C).

Talk with a consumer products safety whistleblower lawyer to maximize your potential damages. If you have experienced workplace discrimination or whistleblower retaliation, call us at (202) 769-1681, or start your preliminary consultation online

What products are covered by the Consumer Products Safety Improvement Act (CPSIA)?

The term “consumer products” means “any article, or component part thereof, produced or distributed

(i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or

(ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise;”

This definition includes items like kitchen/cooking products, electronics such as phone chargers, a vast array of children’s toys, and home furnishings.

However, a number of exceptions exist to the definition of “consumer product” including tobacco, motor vehicles, and aircraft, which are regulated by other laws. 15 U.S.C. § 2052(a)(5).

How do I prove consumer products safety whistleblower retaliation?

The CPSIA whistleblower statute sets forth the same elements of a retaliation claim as other whistleblower statutes: (1) protected activity; (2) unlawful discrimination; and (3) a causal link between the protected activity and the unlawful discrimination. 15 U.S.C.A. § 2087(b)(2)(B)(i)-(iv); 29 C.F.R. § 1983.109(a).”

Precedent related to other whistleblower statutes, including the anti-retaliation provisions of the Sarbanes-Oxley Act, are thus applicable to CPSIA claims.

Put simply, this means that an employee must show only that their whistleblowing activity was a “contributing factor” in the company’s decision to retaliate against them. If this is proven, then the company will be liable for retaliation unless it can show by “clear and convincing” evidence that it would have taken the same action against the employee absent their protected disclosures.

What is the deadline to file a consumer products safety whistleblower retaliation case?

A whistleblower who has been retaliated against must file a complaint with the Department of Labor within 180 days of when the retaliation occurred. 15 U.S.C. § 2087(b)(1).

Can I file a consumer products whistleblower retaliation complaint in court?

Yes, after the Department of Labor has had an opportunity to first investigate your claim. You must first give the Department of Labor at least 210 days after you filed your complaint to investigate and render a decision on your case. If the Department of Labor has not issued a final decision within 210 days, then you may file a case in federal district court for a jury trial. 15 U.S.C. § 2087(b)(4). Alternatively, if the Department of Labor issues its final decision and you disagree with the determination, you can file a case in federal court within 90 days of receiving the final decision. Id. The federal court case will be governed by the same legal burdens described above.

What is "contributing factor" causation?

A contributing factor is a factor which, alone or with other factors, in any way affects the outcome of a decision.

Contributing factor causation can be established by, for example:

Close timing (temporal proximity) between the protected activity and the adverse action.
Evidence of hostility towards the protected activity.
Disparate treatment of whistleblower compared to other employees following protected activity.
Changes in employer’s treatment of whistleblower after the protected activity.
Indicators that employer’s stated reasons for the adverse action are pretext.

What is a "similarly situated employee?"

In an employment discrimination or whistleblower retaliation case, one of the factors a court will likely analyze is how the company treated you compared to other “similarly situated employees.”

The precise definition of who is a similarly situated employee varies depending on the specific legal claim and in which federal court you file your case. Generally, however:

to be similarly situated to another employee, [the plaintiff] must show that the employee is directly comparable in all material respects.

How to tell if someone counts as a “similarly situated employee”

do you share the same supervisor;
do you perform very similar job tasks and responsibilities (both the number and weight) as the other person;
do you have similar job performance evaluations and disciplinary history; and
is your experience level (including supervisory experience) the same as the other person

Most courts do not require an exact match on these criteria, but the more similar you are to the other person, the more likely a court will deem them a “similarly situated employee.”

What are emotional distress damages?

Many laws that prohibit whistleblower retaliation and employment discrimination, such as CPSIA, SOX, Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act (ADA), permit employees to recover money damages for the pain and suffering caused by their employer’s retaliation and/or discrimination against them.

Although the name is self-explanatory, emotional distress damages can cover a range of harms, including:

diagnosed psychiatric condition (such as depression or anxiety disorder);
sleeplessness;
loss of enjoyment of life and mental anguish;
reputational harm; and
strained relationships with family and friends

To receive emotional distress damages you must show that the employer’s retaliation or discrimination–rather than some other life event–caused the emotional harm.

What documents do I need to prove my consumer product safety whistleblower retaliation case?

#1 Written Internal Complaint To Establish Whistleblowing Activity

To be clear, the various laws protecting whistleblowers from retaliation, such as the Consumer Products Safety Act, do not require employees to file a written, internal complaint to the company about potentially unlawful conduct. If, however, a written internal complaint exists, this document can help make a consumer products whistleblower retaliation case even stronger. Note that whistleblower retaliation claims under certain statutes, such as the Dodd-Frank Act, require the employee to externally report their complaint to the U.S. Securities and Exchange Committee (SEC), meaning that submitting an internal complaint solely to the company is insufficient to establish a retaliation claim. Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767 (2018).

To establish a retaliation claim, a consumer products whistleblower must generally show:

they engaged in protected activity (that is, complained about potentially unlawful conduct);
the employer knew they engaged in the protected activity;
they suffered an adverse employment action; and
the protected activity was a “contributing factor” in the adverse employment action

See 18 U.S.C § 1514A(a)(1)(C) and 49 U.S.C. § 42121(b)(2)(B). A stronger case exists to prove the second element, that the employer knew about the complaint/protected activity, if a copy of the written complain exists. Otherwise, the employer may claim that the whistleblower’s verbal complaint did not happen, was vague, and/or did not sufficiently identify potential violations of CPSA or related consumer products whistleblower retaliation laws.

#2 Job Performance Evaluations To Combat Employer’s “Same Action” Defense

#3 Emails, Texts, And Slack Messages To Demonstrate The Company’s Retaliatory Intent

If you have experienced employment discrimination or whistleblower retaliation, call a top rated employment attorney at (202) 769-1681, or start your preliminary consultation online.