Discrimination and Retaliation


Federal law prohibits most employers from discriminating against employees, or prospective employees, based on any protected trait, which include, among others, race, sex, age (40 or older), religion and disability. These laws also disallow retaliation against someone who engages in protected conduct, which includes such actions as filing an EEOC Charge, or opposing discriminatory conduct within the organization. Radford Scott LLP provides representation for both companies and individuals with respect to claims of discrimination and retaliation. Atlanta employment attorney Justin Scott has handled dozens of discrimination and retaliation matters over his career.


There are numerous federal statutes that collectively create the full panoply of discriminatory prohibitions. Title VII of the Civil Rights Act of 1964 (“Title VII”) is the most expansive, in terms of protected traits, and bans discrimination against individuals based upon race, color, sex, religion or national origin. Race discrimination is also prohibited by 42 U.S.C. section 1981. The Age Discrimination in Employment Act (ADEA) proscribes discrimination based on age, protecting those individuals who are age 40 or older. The Americans with Disabilities Act (“ADA”) prohibits discrimination against persons with disabilities, or persons who are regarded as being disabled. The Pregnancy Discrimination Act (“PDA”) outlaws discrimination on the basis of an individual’s pregnancy, childbirth or related medical condition. Finally, and most recently, the Genetic Information Nondiscrimination Act (“GINA”) prohibits employers from discriminating against their employees on the basis of their genetic information. Atlanta employment attorney Justin Scott is well-versed in all of these statutes and able to assist clients evaluating potential discrimination claims based thereon.

In a typical discrimination case, the ultimate issue is whether the employer, in making an employment decision, intentionally discriminated against an individual because of a protected trait. Challenged employment decisions in such cases include failure to hire, failure to promote, unfavorable transfer, demotion and, of course, termination. The employee bears the burden of proving that discrimination occurred. Most courts analyze such claims using the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which establishes a burden-shifting framework that differs depending on the nature of the employment action at issue. However, the Eleventh Circuit, the appellate court for federal lawsuits brought in Georgia, has explained that “establishing the elements of the McDonnell Douglas framework is not, and never was intended to be, the sine qua non for a plaintiff to a survive summary judgment motion in an employment discrimination case.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). Rather, plaintiffs may also pursue their discrimination claims by presenting a “convincing mosaic” of evidence “that would allow a jury to infer intentional discrimination by the decisionmaker.” Id.


Employers may not retaliate against employees (or prospective employees) for engaging in protected conduct, such as filing a lawsuit alleging Title VII violations, filing an EEOC Charge, or making an internal complaint of discrimination, so long as the employee lodging the internal complaint had a good faith, reasonable belief that the conduct complained of violated a particular statute. Discrimination and retaliation complaints often travel together, particularly where an employee who believes she is being discriminated against proactively files a complaint, either with the EEOC or internally. It is important to note that an employee alleging retaliation for protected conduct does not have to prove that the underlying conduct (about which the employee complained) actually violated the statute in question. Atlanta employment attorney Justin Scott has litigated a number of retaliation cases, and offers representation to both companies and individuals with respect to such claims.

Generally, to state a prima facie case of retaliation, a plaintiff must demonstrate: (1) he engaged in an activity protected by an employment statute; (2) he suffered an adverse action; and (3) there is a causal connection between the protected activity and the adverse action. In terms of the adverse action, it must be one that that is “materially adverse” such that a reasonable person would be dissuaded from engaging in the protected conduct. Regarding the causal connection, it is often demonstrated, at least in part, by temporal proximity, although this temporal proximity is not required to prove a claim. Should the plaintiff establish a prima facie case, the employer is charged with articulating a legitimate reason for the challenged action. If accomplished, the plaintiff must then demonstrate that the articulated reason is pretext for retaliation. At all times, the ultimate burden rests on plaintiff. Note that the Eleventh Circuit has made clear that plaintiffs may also pursue their retaliation claims through presenting a “convincing mosaic” of retaliatory intent. See, e.g., Calvert v. Doe, 648 F. App’x 925, 929 (11th Cir. 2016).

Contact Radford Scott LLP at (678) 780-4880 for assistance with discrimination and/or retaliation issues, or contact the firm online here.

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