Race and Retaliation: Opposition to Employer’s English Only Policy and Evidence of Similarly Situated Employees Being Treated Differently Establishes Race and Retaliation Claims

When an employee reports what the employee believes is violation of employment discrimination laws at the workplace and shortly thereafter the employee is then is terminated, employment discrimination laws provide protection. In Abdul-Latif v. County of Lancaster, 2014 U.S. Dist. LEXIS 1313 (E. D. Pa. January 2, 2014)(Stengel, J.), the employee, a Hispanic female of Puerto Rican descent, was employed for 2 years as a case manager/career advisor by the Lancaster Employment and Training Agency working in a career services program. The program required all participants to speak English. Plaintiff’s supervisor met with several employees who spoke Spanish and instructed the employees to stop speaking Spanish with each other; Plaintiff was also instructed to only speak English with her clients and plaintiff was instructed to post signs containing the English only policy at the Corporate Center. On more than one occasion, plaintiff complained that the policy was unfair to Spanish-speaking clients but each time Plaintiff was advised only English could be spoken. After Plaintiff’s clients complained to her that the English only policy was unfair, Plaintiff advised the clients to file a complaint with the Lancaster County Human Relations Commission. Shortly thereafter, the employer terminated Plaintiff’s employment for allegedly using her work email account for personal gain in violation of county policy. The plaintiff filed a lawsuit alleging violation of federal, state and county national origin discrimination and retaliation laws, alleging her employment was terminated because she was Hispanic and in retaliation for opposing the English only policy and advising her clients to file complaints.

The record before the court established that violations of the email policy had been an ongoing problem at the employer and in the months leading up to plaintiff’s termination, inappropriate emails had been sent by three other employees who were disciplined for violation of the policy but none of those employees were terminated. The court found that because Plaintiff established that several of her similarly situated co-workers violated the same email policy and received less severe discipline, plaintiff can use evidence of preferable treatment to satisfy her burden of proving both a prima facie case of race discrimination and that the reason the employer-provided for her termination (violation of email policy) was a pretext, and not the real reason for her termination.

In establishing an indirect case of employment discrimination based on a protected criteria such as race discrimination, where there is no direct evidence of discrimination (i.e. an employer stating we are terminating you because of your race, which almost never happens), a key element of proof is often whether the plaintiff can show that a similarly situated employee was treated differently. The law provides that the comparators do not need to be identically situated, but the comparator must be similar to plaintiff in all relevant respects. Whether comparators are similarly situated is generally a question of fact for the jury. In Abdul-Latif, Plaintiff’s proposed comparators were three fellow employees who also violated the email policy and worked for the same employer, in the same building, reported to the same supervisor and violated the same email policy. The court found that given this evidence, a reasonable jury could find that plaintiff’s co-worker employees were similarly situated. Since the plaintiff could also show that she is a member of a protected class and suffered an adverse employment action occurring under circumstances giving rise to an inference of unlawful discrimination, the court found that Plaintiff’s reference to the treatment of her similarly situated co-workers provides abundant support for a jury to disbelieve the employer’s non-discriminatory reason and denied a motion for summary judgment on plaintiff’s race discrimination claims.

The court also found that Plaintiff could proceed to trial with her retaliation claims. In order to establish a retaliation claim, an employee must show (1) the employee engaged in a protected employee activity; (2) the employer took an adverse employment action after or contemporaneous with the protected activity; and (3) a causal link exists between the protected activity and the adverse action.The court found that Plaintiff’s opposition to the English only policy was protected activity and the termination of plaintiff’s employment is an adverse employment action. As to a causal link between the protected activity and the adverse employment action, an employee can establish causation by showing (1) temporal proximity between the protected activity and adverse action, (2) a pattern of antagonism after the protected act, or (3) the record taken as a whole supports an inference of retaliation. In Abdul-Latif, the Court found that the temporal proximity (time between protected activity and retaliatory action) was evidence of causation, holding that temporal proximity, without more, may create an inference of causation if the timing is unusually suggestive. Since the Plaintiff employee was able to show that shortly after learning of plaintiff’s complaints about the English only policy the employer initiated paperwork to terminate plaintiff (within six days), the court concluded that Plaintiff has sufficient evidence of retaliation to proceed to trial.

For more information on race discrimination, retaliation and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126519.html, on see http://www.job-discrimination.com/lawyer-attorney-1126498.html.

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Filed under Employment Law, Race Discrimination, Retaliation

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