A Suffolk County Superior Court jury just handed a $28 million award to a former nurse who claimed she had suffered discrimination because of her race and was retaliated against by Brigham & Women’s Hospital. This is the largest award in Massachusetts history for an employment law case. A Boston Globe article discussing the verdict can be found here.
This is especially compelling, where the jury ruled against the plaintiff on her underlying race discrimination claim. The jury based its entire award on the plaintiff’s retaliation claim.
Retaliation is still one of the fastest-growing claims in employment law cases, and it is not uncommon for a plaintiff to lose on their underlying discrimination claim but still prevail on their retaliation claim. Retaliation occurs when an employee exercises their legally protected right, such as complaining about mistreatment, supporting another who complains or objecting to what the employee believes is unlawful conduct. Importantly, the law does not require the employee to be “right” about their complaint. They need only have a good faith belief that they are making a legitimate complaint. Employers and their managers regularly fail to appreciate this nuanced definition of retaliation. They also routinely fail to watch for and prevent the subsequent mistreatment of the person who exercised their protected right, most often because the employer believes the complaint to be frivolous or unfounded. As this case demonstrates, that failure can come with a heavy price tag.
The award included a lost wages award of $463,000 and an emotional distress award of $2,750,000. After deliberating for 3 days, the jury issued a punitive damages award of $25 Million! Punitive damages are intended to punish the defendant for its misconduct.
This case demonstrates the importance of having a strong policy that both defines retaliation and prohibits it. After a complaint is made, in addition to investigating it employers need to monitor the work environment surrounding the complaining employee, as well as others who may support the employee or participate in interviews for the investigation.
Employees who feel they have been subjected to retaliatory conduct in the wake of a complaint should notify the appropriate persons within the employer, such as Human Resources. Most importantly, however, those who suffer retaliation should be sure to document it and keep close track of the misconduct. It is the employer’s responsibility to police and prevent it, and failing to do so creates potential liability.