Q: One of my co-workers has asked me to testify for in her discrimination case against our employer. I want to help, but I am afraid that my employer will retaliate against me if I help her.

–Want to Help But Scared (CA)

A: Both state and federal discrimination laws prohibit retaliation by employers against employees for participating in an investigation or prosecution of an employment discrimination or harassment case.

Investigation Outcome Irrelevant

Even if it turns out that the employee who complains about discrimination was not discriminated against, or even if that employee turns out to be lying, you are still protected from retaliation.

The law protects the act of speaking up for someone else, which is evaluated independently of the underlying discrimination claim.

Retaliation Can Be Subtle

This year’s landmark Supreme Court case of Burlington Northern v. White, 126 S.Ct. 2405 (2006), clarified and strengthened protections for employees against retaliation in discrimination cases.

The Court decided that any actions by an employer that would “dissuade” a “reasonable employee” from making or supporting a discrimination complaint is illegal retaliation and proper grounds for that employee to sue.

What this boils down to is that if you are retaliated against and in hindsight you would not have participated in the investigation if you had known what your employer would later do to you for it, then those actions are likely illegal.

Co-Worker Assistance is Crucial

One of the major motivations for the Court in the Burlington case was the strong public policy in this country to encourage those employees who witness discrimination against others to speak up and testify if needed.

It is important for these witnesses to feel comfortable testifying against their employers on other employees’ behalf if there was wrongdoing.

Tags

Cases | Discrimination | Harassment | Q&A | Retaliation | Wrongful Termination