By: Glenn C. McGovern, Attorney at Law
One of the most potent weapons in a Louisiana employment lawyer's arsenal of weapons is an employment retaliation claim. Juries see a situation where they are more likely to punish the employer for violating the "Golden Rule" favor retaliation claims. Juries do not like retaliation by a big employer against the employee and will award substantial damages for it. What many non-employment lawyers do not realize is that you could pursue a retaliation claim successfully even when an underlying discrimination claim may be questionable. As long as the employee made a complaint of discrimination, or testified in an investigation, and were retaliated against, you still have a retaliation claim. All that is required is that a racial discrimination or sexual harassment claim is filed or the employee testifies in an investigation and after the complaint or testimony happens, the plaintiff/employee is retaliated against.
I noticed the tendency of the juries to award substantial damages in a retaliation claims when I was experimenting with the Jury Verdict Research software. The old software used to allow you to select in retaliation as a claim. For example, I notice if you just selected sexual harassment only your chances of success would be between 50% and 65% chance of success. When you selected racial discrimination your chances of success would be between 45% and 55%. However, when you selected retaliation for either discrimination in the software, your chances for success jumped up to approximately 98%. I also checked this theory by running a Westlaw search on retaliation and discrimination claims in a set time period. It verified the same pattern. Retaliation claims are much easier to win.
Retaliation is generally misunderstood. It seem employment defense lawyers are sometimes overly confident regarding retaliation claims due to the recent omission of the former retaliation claim language from the Louisiana employment discrimination statue La. R.S. 23:332. In Rambo v. Willis-Knighton Medical Center, 793 So.2d 254 (La. App 2 Cir. 2001), footnote 6 points out that Section 301(La. R. S. 23:301 et al) of the general statutes embodies the Louisiana Employment Discrimination Law contained Section 303, which was enacted in 1999 and provides authorization for civil suits, however this Section was blank at the time the instant suit was filed. Under Louisiana law and the Louisiana Employment Discrimination Law, under Section 301, there is not a specific section dealing with retaliation. There still are retaliation causes of action for sexual harassment and racial discrimination under Title VII of the Civil Rights Act of 1964.
A wise employment attorney will always plead joint state and federal causes of action in the suit in federal for Title VII civil rights claims, as well as state law claims to be safe. This is especially wise to do in whistleblower claims, as many of the federal statues require prior notices within 30 days like in OSHA whistleblower claims for example. The La. state whistleblower act pleading may provide a cause of action is maintained if the federal cause of action fails for lack of notice.
There are still several retaliation laws in Louisiana that may apply to protect employees.
La. R.S. 42:1169: Freedom from reprisal for disclosure of improper acts.
Any public employee who reports to a person or entity of competent authority of jurisdiction information which he reasonably believes indicates a violation of any law or of any order, rule, or regulation issued in accordance with law, or any other alleged acts of impropriety related to the scope or duties of public employment or public office within any branch of state government or any political subdivision shall be free from discipline, reprisal, or threats of discipline or reprisal by the public employer for reporting such acts of alleged impropriety. No employee with authority to hire, fire, or discipline employees, supervisor, agency head, nor any elected official shall subject to reprisal or threaten to subject to reprisal any such public employee because of the employee's efforts to disclose such acts of alleged impropriety.
Under the Family Medical Leave Act of 1993, Section 105(a)(2), 29 U.S.C.A. § 2615(a)(2).
The burden-shifting analysis used on Family and Medical Leave Act (FMLA) retaliation claims, can establish a prima facie case of retaliation by showing that: 1) he/she engaged in activity protected under FMLA; 2) he/she suffered an adverse employment action; and 3) there was a causal connection between the two.
Section 1981 of the Civil Rights Act of 1866
Section 1981 shows that not only do juries favor retaliation claims, but so does the present 2008 United States Supreme Court panel. In CBOCS West, Inc. v. Humphries, U.S. 128 S.Ct. 1951 (2008), the U.S. Supreme Court held, with a 7-2-majority vote on May 27, 2008, that Section 1981 does, in fact, encompass retaliation claims. Section 1981 covers claims of retaliation regarding claims of discrimination based on race based on an employee/employer relationship or contract. Even though Section 1981 does not specifically have a retaliation section, or even speaks of retaliation, the U.S. Supreme Court has ruled that you do have a cause of action for retaliation under Section 1981. An employee, who is discriminated, based on race, can only use section 1981 in a contractual cause of action. The definition of race is broad and encompasses ethical discrimination and it also protects employees based on culture and heritage based on the "Equal Contract Rights" provision of Section 1981. The United States Supreme Court has also held that Section 1981 has a four-year prescriptive period, which preempts state law prescriptive periods.
Under, La. R.S. 23:697 the Louisiana Whistleblowers Act
This statue provides employees protection from reprisal; prohibited practices; remedies, and provides an employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law: 1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law; 2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law; and 3) Objects to or refuses to participate in an employment act or practice that is in violation of law. The damages include compensatory damages, back pay, benefits, reinstatement, reasonable attorney fees, and court costs resulting from the reprisal.
Note though that damages of attorney fees and court costs may be awarded to the employer if the petition was found to be brought in bad faith or if it should be determined the act or practice is not in violation of the law.
A good article on the statute is found in Louisiana Gets a Whistle-Blowing Statute, Louisiana Bar Journal, June, 1996, by Albert D. Clark.
La. R.S. 30:2027 Environmental Whistleblower Statue
Treble damages are awarded for unlawful reprisal against employee for reporting environmental violations and it provides for attorney's fees and costs. In Cheramie v. J. Wayne Plaisance, Inc., 595 So.2d 619, an employee was discharged and it entitled him to triple damages under section of the Louisiana Environmental Quality Act prohibiting retaliation by employers against employees who report or complain about possible environmental violations, where the employee complained about employer's operation in protected area without a permit to the point of refusing to participate in the work, and was subsequently fired because of that refusal.
La. R.S. 23:1361: Unlawful discrimination for filing a worker's compensation claim prohibited
The statue provides no person, firm or corporation shall refuse to employ any applicant for employment because of such applicant having asserted a claim for workers' compensation benefits under the provisions of this Chapter or under the law of any state of the United States. This Section also states that any person who has been denied employment or discharged from employment in violation of the provisions of this Section shall be entitled to recover from the employer or prospective employer who has violated the provisions of this Section a civil penalty which shall be the equivalent of the amount the employee would have earned but for the discrimination based upon the starting salary of the position sought or the earnings by the employee at the time of the discharge, as the case may be, but not more than one year's earnings, together with reasonable attorney's fees and court costs.
Disabled person discrimination prohibited in La. R.S. 23:332
Chapter 3-A treats the topic of prohibited discrimination of disabled persons or persons perceived as disabled in employment. Section A provides that no otherwise qualified disabled person shall, on the basis of a disability, be subjected to discrimination in employment. It also provides that an employer shall not fail or refuse to hire, promote, or reasonably accommodate an otherwise disabled person, on the basis of a disability, when it is unrelated to the individual's ability, with reasonable accommodation, to perform the duties of a particular job or position. While it does not mention retaliation or reprisal, Section B(2) does state that it is prohibited to discharge or otherwise discriminate against an otherwise qualified disabled person with respect to compensation or the terms, conditions, or privileges of employment on the basis of a disability when it is unrelated to the individual's ability to perform the duties of a particular job or position.
The Louisiana disability and discrimination statutes no longer provide for anti-retaliatory provisions. The Federal ADA retaliation provisions, and Sections 12203 (Sec. 503(a) and Sec. 503(b) do provide for retaliation. As per Schellenberger v. Summit Bancorp, Inc., 318 F.3d 183 (3d Cir. 2003), the retaliation claims under the ADA are analyzed under the same framework as Title VII. While individuals cannot be held liable under Title VII, (individuals are not defined as employers), some courts have allowed for individual liability under ADA's anti-retaliation provision which states that "No person shall" retaliate. See Ostrach v. Regents of Univ. of Cal., 957 F. Supp 196 (E.D. Cal. 1997).
Conclusion
The above listed Louisiana employment statutes provide an employer cannot retaliate against an employee for filing whistleblower, workers' compensation, state or local government whistleblower and environmental whistleblower complaints. While the retaliation provision under state discrimination law under, La. R.S. 23:332 et al no longer provide specifically for retaliation, that is easily overcome by pleading Federal Title IV, Section 1981 or Federal ADA retaliation cause of action in the pleadings. In Louisiana discrimination cases a federal claim should be also be filed under Title VII of the Civil Rights Act of 1965, to obtain damages for retaliation claims for discrimination. Of course, pleading any federal statue will allow removal in most cases and should be considered as part of overall strategy.
GLENN C. McGOVERN
