Law Offices of Michael G. O'Neill
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Retaliation Is Like Terrorism

Retaliation is like terrorism because they both incite fear by causing harm to someone. In both cases, the fear is the real purpose, the harm is solely the means.

In our legal system, we have laws against certain forms of discrimination. Every such law contains a provision that prohibits retaliation for asserting or supporting rights under those laws. Without such a prohibition, the laws against discrimination would be meaningless. This is because, if retaliation goes unchecked, employees are going to be too afraid to assert their rights under the laws against discrimination. This is elementary.


The shortcoming in the laws against retaliation is that they treat the harm, but not the fear. Consider a typical retaliation case. Jane Doe is fired for making a claim of discrimination. Jane brings a claim of retaliation, and after several years of litigation, the company settles Jane’s case under a confidential agreement. The retaliation was visible in the workplace, the settlement was years later and will never come to light. Hence, the message was effectively given to the Jane’s co-workers. It doesn’t really matter whether Jane received a thousand or a million dollars, because Jane’s co-workers will never know, and they will be too scared to find out by making their own claim, getting fired and going through the burden of litigation.

There have been some improvements. New York now prohibits confidentiality in settlement agreements in most cases. But these are incremental changes, they do not change the fact that the laws address solely the harm caused, and not the fear spread.

In many cases, companies are only too willing to undergo whatever the cost of causing the harm turns out to be, because the fear is so much more valuable. This is especially the case where efforts to unionize are involved.

Reprinted below is a notice to employees of a Cemex subsidiary in Florida mandated by the National Labor Relations Board. A little background. Federal law prohibits employers from retaliating against employees for engaging in union activities. Only the General Counsel of the NLRB, however, can enforce this provision. The resources of the NLRB are limited, therefore many violations go unenforced.

The purpose of the notice shown below is to advise employees of their rights and to show that the employer faces consequences for violating those rights. I submit, however, that the notice serves just the opposite purpose, that it broadcasts to employees that they will be fired for engaging in union activities, just like they fired the individuals named in the notice. The “penalty” paid by the company is miniscule – a few months of back pay with a few pennies of interest. It is chump change compared to the additional wages and benefits that the company would be forced to pay if the union election were successful. That is why companies will go to great expense and even violate the law in order to prevent workers from joining unions.

An effective law against retaliation, whether in the context of union activities or employment discrimination, would make retaliation unpalatable to senior management, such that they would actually be motivated to prevent it, rather than inclined to commit it.

I’m sure there are countless ways to achieve this. One that occurs to me is to limit the salaries and stock bonuses of senior executives if a corporation were found guilty of retaliation. Something tells me that would go a long way to eliminating unlawful retaliation.

Cemex Unfair Labor Practice Settlement