People may differ as to which of our rights they value most (i.e. the right to be free from discrimination based on religion, gender, race or the right to speak out against unlawful activity by the employer or unlawful behavior by another employee). Regardless of which of these underlying rights we value most, we are most offended by retaliation against employees for attempting to assert their right and offended more so when that retaliation results in a wrongful termination. As a result, the right to be free from retaliation is valued by all.
An employer accused of violating a law, whether by charge of discrimination or otherwise, is wise not to permit retaliation against the employee making the claim.
Employers who chose to violate the law are gambling that they will win because they have more resources, they are specifically gambling:
- that the retaliated against employee will not file a lawsuit,
- that if an employee does file a lawsuit, that he or she will settle for a small out of court amount, and/or
- that the employee will not have the stamina to make it to court,
- that the employee will not find an attorney who will work hard on a contingency basis, not charging the now unemployed retaliated against employee, and
- that even if he or she does all the above, that a jury will not like an employee who sues their former employer, that they will be able to persuade a jury it was based on a “legitimate business decision” and even if they do not convince a jury of their defense, that a jury will not award much in damages.
It truly is a tough battle and we work very hard for our clients’ best interests.
Employers who make wise business decisions will usually treat an employee who reports unlawful behavior with respect, and with significant efforts to avoid wrongful termination. If employed with an employer who makes good (lawful) business decisions, an employee who is careful to meet all expectations of his employer will be unlikely to suffer retaliation, and even if he does, it is unlikely to be in the form of a wrongful termination.
However, an employee who faces retaliation in the form of wrongful termination brings a strong claim. Claims of retaliation in the context of exposing fraud, see Qui Tam, are especially strong and may allow for significant monetary recovery for that whistleblower depending on the scope and nature of the fraud exposed.