In my November 2003 column concerning employment discrimination, I briefly noted that in order for an employee to have a successful retaliation action under the anti-discrimination laws, it was unnecessary for her or him to prove that they were actually discriminated against. (Both state and federal law make it unlawful for an employer to retaliate against an employee for asserting a discrimination claim. (See Executive Law Section 296[7].) For this reason retaliation actions have a far greater probability of success than the underlying discrimination claims do. A suit I just litigated, in fact, proves this very point.

The facts of this case are as follows: An individual had retained me to negotiate a severance agreement with his employer. Apparently, he had just returned from a medical leave precipitated by a serious case of viral hepatitis. Upon his return, he noticed that his supervisors were treating him horrifically. Rather than commencing suit, he decided upon a more diplomatic approach: to negotiate a package so that he could leave on good terms. Unfortunately, since he was “voluntarily” resigning, his employer, an extremely wealthy insurance company, offered him a mere pittance (only four weeks pay).

Once I was retained, I sent a letter to the company advising them that my client actually had a viable disability discrimination action and that in order to entice him to release this claim a more generous severance proposal had to be offered (three months pay and a percentage of his bonus). Rather than agreeing to the proposal, my client was dismissed several days after my letter was received by the company and was sent a severance agreement containing a figure less than what we had requested with a letter indicating that his “resignation” was accepted. Immediately, we rejected the proposal and requested that he be allowed to return to work. When that request was rebuffed, with my client’s consent, I promptly initiated suit in state supreme court.

The outcome of the suit may be a little surprising. While the court stated that my client did not have a viable disability discrimination action based upon the facts in the record, he did have a viable retaliation action, because it was clear that a jury could reasonably find that he was terminated for hiring an attorney to assert his potential disability discrimination claim. Now the company will wind up paying several times more than the amount they originally offered.

In order to assert a valid retaliation claim, a plaintiff must demonstrate: (1) she has engaged in protected activity; (2) her employer was aware that she participated in this activity; (3) she suffered an adverse employment action based upon the protected activity and; (4) there was a causal connection between the protected activity and the adverse action. (See Forrest v. Jewish Guild for the Blind, 3 N.Y. 3d at 295.)  In the case in which I was involved, all four criteria were satisfied by the facts. The protected activity was my client’s hiring an attorney to assert a potential discrimination claim. An adverse action proximately resulted from the protected activity because he was terminated mere days after the assertion of that claim.

The moral of this story is clear. If an individual is terminated or demoted immediately after they complain about workplace discrimination, the chances are good that they have a valid retaliation claim, even if their original discrimination claim lacked merit. Under those circumstances it always pays to assert a retaliation claim.

Harvey Mars is counsel for Local 802. Legal questions are welcome from 802 members. E-mail them to jurmars566@aol.com. Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.