A lawsuit filed in Georgia recently should serve as a reminder that employers cannot take adverse employment actions against employees (e.g. firing, demotion, etc.) because an employee has in good faith reported what that employee reasonably believes is evidence of unlawful activity.
In the lawsuit I mentioned above, which was filed against a Kansas-based staffing agency called Spencer Reed Group, a 55-year-old Caucasian female employee was subjected to differential treatment by her younger male African American supervisor. The employee submitted a complaint and was fired one day later.
There is not enough information to remark on the strength of the employee’s actual discrimination claims. However, it appears that retaliation is a real problem for the employer in this case. Even if the employee cannot prove she was subject to discrimination, there is no getting around the fact that the employer fired the employee within 24 hours of receiving a complaint. The timing of the discharge is very problematic and is likely to overshadow whatever legitimate, non-discriminatory ground for termination the employer will allege.
This case is also a great example of why the new Oregon whistleblowing law is so important. H.B. 3162, which was signed by the governor on June 24, 2009, prohibits retaliation against employees for good faith reports of information an employees believes to be evidence of unlawful activity. (Read bill here). The law applies to actions filed on or after January 1, 2010, which means that retaliatory conduct occurring any time after January 1, 2009 could theoretically be subject to this new law. Retaliation has been prohibited in various forms under the Oregon common-law for some time. See e.g., Galenbeck v. Newman & Newman, Inc., 2004 US Dist LEXIS 9249 at **21-25 (D. Or. May 14, 2004); McGanty v. Staudenraus, 321 Or. 532 (1995); Goodlette v. LTM, Inc., 128 Or. App. 62,65 (1994). However, the new law will alleviate the need for employees to navigate the nuances of a wrongful discharge claim.
