The Whistle Blower Act, Mass. General Laws Ch. 149 § 185(b), provides that a public employer may not retaliate against a public employee who has (1) "blown the whistle" or, in other words, disclosed an activity, policy or practice of the employer that the employee believes is a violation of a law, rule, or regulation and a risk to public health, safety or the environment; (2) provided information to a public body conducting an investigation into such activity; or (3) objected to or refused to participate in such activity. Retaliation under the Act includes any adverse employment action, such as demoting, suspending or firing the employee who makes the disclosure or objects to the activity.
There are many anti-discrimination statutes aimed at protecting employees, such as the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Title VII of the Civil Rights Act of 1964 under federal law and the anti-discrimination provisions of Chapter 151B of the Massachusetts General Laws to name a few. While understanding the nuances and the interplay between federal and state laws can pose challenges, the intention behind these laws is something that all well-meaning employers support. Nevertheless, situations can arise when even the most well-meaning employer may find compliance with the law and the behavior required to avoid a lawsuit both counterintuitive and difficult. One particularly dangerous area for employers can be found in the anti-retaliation language contained in many employment discrimination statutes. This is because employers too often react negatively to the assertion of a claim and consequently turn a weak discrimination case into a strong retaliation claim.
The First Circuit Court of Appeals issued a decision last week allowing a retaliation lawsuit to proceed because the company's CEO told others that he wanted to "get rid of" an employee, even though there was no evidence that the CEO made those statements directly to the supervisor who terminated the employee, or that the CEO was in any way involved in the termination decision.