What is Retaliation Under Massachusetts Employment Law

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Pursant to Massachusetts law, the word retaliation is defined as; an employer taking and adverse action against an employee as a result of the employee conducting some form of protected activity. Retaliation is a separate claim from discrimination, it can be found in Massachusetts General Laws in chapter 151B. The word retaliation is not actually used in the law however the courts commonly use the word as shorthand for the word antidiscrimination statutes. The laws against retaliation allows for liability against individuals and not just employers.

Under Massachusetts Law 151B there are two different subsections that prohibit unlawful retaliation and they are §4 (4) and §4 (4A). § 4 (4) states; "for any person, employer labor organization, or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any practices prohibited under this chapter or because he has filed a complaint, tested, assisted in any proceeding under section five of MGL 151B § 4 (4). " MGL 151B §4 (4A) states that; "for any person to coerce, intimidate, threaten or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter, or to coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right. "

Under Mass Practice Section 8.30 it states that in order to establish a case of retaliation, the stainiff must show that he / she engaged in legally protected conduct and that he / she suffered an adverse employment action, and that a causal connection exists between the legally protected conduct and the adverse employment action. In order for one to succeed in a relation claim they must show the following;

  1. The plaintiff must prove that he reasonably and in good faith believed that his employer engaged in wrongful discrimination.
  2. That he acted reasonably in response to this belief
  3. That the employer's desire to retaliate against was his determinative factor in taking an adverse employment action.

In order for the plaintiff to prove the first prong of their retaliation case they must show that they engaged in an act protected under chapter 151B section 4 (4), and those who have opposed any practice concealed under MGL c. 151B and those who file complaints or assist in any proceedings before the MCAD (Massachusetts Commission Against Discrimination) these are known as the "opposition" and "participation" clauses.

The application of the opposition clause and can prove to be tricky because the employee must allege that the retaliatory conduct was due to the employee's opposition to practices concealed under MGL c. 151B.

The participation clause refers to MCAD proceedings and c.151B does not cover participation in internal investigations of discrimination without the participation amounts to the protected opposition, such as assisting, or encouraging another employee in the exercise of that employee's rights.



Ashley Gurdon

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