By R. Scott Oswald and Austin Szabo

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IMPORTANT: The following article is intended as a general summary of facts and law and not as individual legal advice upon which you should rely or act. Every case is unique and specific. This article represents our firm’s best knowledge as of October 2026.

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When a client is targeted for reporting fraud to the government, many employment attorneys reach for the False Claims Act (FCA) and stop there. That can be a costly mistake. The anti-retaliation provision of the National Defense Authorization Act (NDAA) offers powerful, complementary protections that, when paired with the FCA, can give a plaintiff a decisive legal advantage.

The two statutes are different in important ways, but those differences are precisely what makes them powerful together, as the statutes’ respective strengths cover the other one’s weaknesses. For many whistleblowers seeking protection from retaliation, a dual approach may not be just a good option — it could be the right one.

The False Claims Act’s Anti-Retaliation Provision

Congress enacted the FCA to prevent fraud, waste, and abuse involving federal funds. The FCA also protects whistleblowers who speak up about suspected fraud, but before 2009, protections under the FCA were narrowly limited to those who were taking steps toward filing a whistleblower lawsuit (known as a qui tam action). This created a gap in protection for employees who had opposed suspected fraud through their company’s internal systems.

The gap was filled with the Fraud Enforcement and Recovery Act of 2009 (FERA), which broadened the definition of protected activity under the FCA. With the FERA amendments, employees are not only legally protected from retaliation when preparing to file a whistleblower lawsuit but also when they:

• Report suspected fraud to a supervisor;
• Raise concerns with a compliance department;
• Participate in an internal investigation;
• Refuse to take part in conduct they believe is fraudulent; or
• Take other lawful steps to stop violations of the FCA.

Post-FERA, an employee has engaged in protected activity under the FCA’s anti-retaliation provision if it can be reasonably concluded that their actions could make their employer afraid of being reported to the government for fraud or sued in a qui tam action.

The Employment Law Group had the opportunity to test the statute’s expanded whistleblower protections with Huang v. UVA — one of the first cases tried to a verdict after FERA. The jury instructions at trial were clear: The plaintiff didn’t have to prove that he had filed or planned to file an FCA lawsuit. He didn’t even have to be aware of the FCA at all. He only had to show that he had opposed false claims and that his actions could’ve reasonably led to litigation or a viable FCA claim.

The jury came back with a favorable verdict and over $819,000 awarded to our client.

The National Defense Authorization Act’s Anti-Retaliation Provision

The NDAA is perhaps best known as the annual legislation that funds all defense agencies, but it has also become a powerful anti-retaliation statute for whistleblowers. In Fiscal Year 2013, it was used to significantly expand whistleblower protections for federal contractors.

Congress used the NDAA to add an amendment to the Defense Contractor Whistleblower Protection Act (DCWPA) — itself an offshoot of the Whistleblower Protection Act (WPA) — that created a private right of action protecting whistleblowers who report fraud in the defense contracting space. Crucially, this amendment came with a pilot program expanded to cover all government contracts, not just defense contracts. The pilot program was made permanent in the 2016 NDAA.

Now, the NDAA’s anti-retaliation protections reach beyond the defense space and apply to whistleblowers who report fraud in a broad range of entities that have contracts with the federal government.

Medicare fraud, for example, has typically been thought of as an FCA claim, but the 2013 expansion means that the NDAA can equally apply because healthcare providers maintain contractual relationships with the federal government through their enrollment agreements with the Centers for Medicare & Medicaid Services (CMS). Providers participating in Medicare sign forms agreeing to comply with Medicare billing requirements and applicable statutes and regulations. These agreements can provide the contractual connection necessary to support an NDAA claim alongside an FCA claim.

The same principle applies to organizations operating under Corporate Integrity Agreements (CIAs) and other government agreements.

Using the FCA to Build an NDAA Case

The NDAA can be a powerful statute for whistleblowers, but it comes with challenges that can make it difficult to use successfully, at least at the outset of a case.

The Disadvantages of an NDAA Claim

The NDAA presents three challenges that can make an attorney initially overlook its value.

The first challenge is that the whistleblower must first file a complaint with the appropriate Office of Inspector General (OIG) within two years of the retaliatory action. They must then wait 210 days for the agency’s OIG to investigate the claim before the whistleblower can be granted the right to file their claim in federal court.

The second challenge is that the OIG’s determination at the end of its investigation is admissible in court. This isn’t necessarily a problem, but it can be if the OIG determines that there is no cause to proceed — a result that could weaken the case in the eyes of the court or a jury.

The third — and most significant — challenge is that the NDAA requires more information regarding the underlying fraud when alleging protected activity than the FCA (which requires pleading with particularity when it comes to fraud allegations but not with retaliation claims). Courts frequently find that at least identifying the contract at issue is necessary to state a claim under the NDAA, although you’re not required to provide it during the initial pleading stage and you’re also not required to prove that the fraud took place.

By the end of discovery, however, you should have the contract at issue or stipulate to its contents. A government-contract relationship is a required element of an NDAA claim, and the lack of a contract (or at least a stipulation of its terms) can make it difficult for a case to survive summary judgment.

How the FCA Overcomes the Challenges of an NDAA Claim

The obstacles for an NDAA claim are real — but each one may be solved by filing an FCA retaliation claim alongside the NDAA. This is because the FCA retaliation provision comes in with:

• The ability to enter into federal court right away rather than waiting 210 days;
• A broader scope for protected activity without the need to identify a contract or qui tam claim; and
• As a bonus, double back-pay damages.

The strategy is straightforward: File an FCA retaliation claim immediately to get into federal court, use the resulting discovery to obtain the contract at issue, and then amend the complaint to add the NDAA claim once it has been administratively exhausted. This solution uses the immediate deployability of FCA retaliation claims to build a case for the NDAA (i.e., finding the contract at issue in discovery) while waiting for that claim to mature.

To preserve this option, alert the court to the plan at the Rule 16 Conference so the later amendment is accepted under the joinder rules.

Using the NDAA to Win an FCA Case

You might wonder why you would even want to have an NDAA claim if it seems like the FCA has all the benefits. The FCA’s strong suit here is in getting the case off the ground immediately and opening an avenue for collecting the necessary evidence for an NDAA claim.

But from there, it’s the NDAA’s strengths that can push the case over the finish line to a successful resolution.

The Advantages of an NDAA Claim

The NDAA inherited the WPA’s employee-friendly “contributing factor” standard rather than the traditional “but-for” standard used in most retaliation cases. Under the NDAA, a whistleblower need only show that the protected activity was a contributing factor in the employer’s decision to take an adverse action, such as termination, demotion, or suspension. The whistleblower doesn’t have to prove that the protected activity was the sole reason — or even the primary reason — for the adverse action.

Critically, the NDAA also uses the WPA’s burden-shifting mechanism: Once a plaintiff shows that the protected activity was a contributing factor, the burden shifts to the defendant to prove by “clear and convincing evidence” that it would have taken the same adverse action even if the protected activity had not occurred. That is a heavy lift for any employer.

By contrast, the FCA’s anti-retaliation provision has a higher burden of proof for the plaintiff without any burden shifting to the defendant.

How the NDAA Makes it Easier to Win a Whistleblower Case

The strategic value of pleading both statutes is that it reshapes how a jury is instructed to weigh evidence. In Cody v. ManTech, The Employment Law Group used the NDAA’s burden-shifting scheme to prevail at trial in a complex case.

The firm represented a married couple who claimed they were demoted and then fired after raising concerns about fraudulent pricing related to a major government contract for mine-resistant vehicles.

The court instructed the jury that the plaintiffs first had to prove, by a preponderance of the evidence, that the protected disclosure was a contributing factor in the decision to terminate their employment.

The plaintiffs provided enough evidence for that, and so it became the defendant’s task to prove otherwise: that they would’ve fired the couple even if they hadn’t reported fraud. However, the NDAA claim meant that the defendant had to show more solid evidence than the plaintiffs did.

The NDAA’s burden-shifting framework translated directly into a favorable jury instruction — and the verdict form tracked that same framework, walking the jury step-by-step toward a verdict (and $2.1 million) for the plaintiffs.

The plaintiffs in Cody v. ManTech benefitted from pursuing both claims because the NDAA provided its favorable burden-shifting scheme that made it easier for them to prove their case and the FCA provided its double-backpay damages that brought them a greater award in the end.

The bottom line: Filing an FCA retaliation claim alone may leave your client exposed. The NDAA’s burden-shifting scheme may be the difference between a verdict and a dismissal. Using both statutes when applicable may give your client the strongest possible chance of prevailing.

Frequently Asked Questions

Q: What if my client has a qui tam claim?

Asserting a qui tam claim while also asserting retaliation claims is extremely difficult due to simple differences in timing. You can reach federal court right away with an FCA retaliation claim — or in 210 days with an NDAA retaliation claim — but an FCA qui tam claim can take many years to resolve, much of that time waiting for possible government intervention under seal.

Further, the seal is a problem for potentially settling an FCA or NDAA retaliation case because the settlement would require complete release from qui tam claims and confirming that none currently exist under seal.

You can include the retaliation claims in the complaint to preserve them while waiting out the qui tam process. You can also still administratively exhaust the NDAA claim and later amend the complaint while it is under seal. Once the qui tam claim is either settled or dropped, you can concentrate on proceeding with the retaliation claims.

Q: When should I file an NDAA claim without an FCA claim?

An instance where you should file a NDAA retaliation claim without also filing FCA retaliation is if the whistleblower/plaintiff identifies a violated law, rule, or regulation relating to the contract but not relating to a false claim for government payment.

Q: Can the jury find against my client on one claim but not the other?

Yes. Juries are usually asked to find liability under each law separately. This means that the jury may reach different verdicts for different claims.

However, in Cody, we stipulated with the other side that if the jury found for the plaintiff on one claim, it would necessarily also find for the plaintiff on the other claim. The parties agreed to this because the facts of the case suggested that the result of both claims was linked. The plaintiffs claimed protected activity was undisputed on both claims, and finding causation in one claim would mean finding it for the other.

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R. Scott Oswald is the managing principal at The Employment Law Group, P.C., a law firm that represents employees in disputes with their employers. Austin Szabo is a senior associate at the firm.

By Adam Augustine Carter and Ethan McSweeny

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IMPORTANT: The following article is intended as a general summary of facts and law and not as individual legal advice upon which you should rely or act. Every case is unique and specific. This article represents our firm’s best knowledge as of September 2026.

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Achieving tenure is one of the most significant milestones in an academic career. Colleges and universities generally have considerable discretion to evaluate a candidate’s research, teaching, service, and other qualifications. If tenure is denied based on merit, there’s probably no basis for challenging the decision.

However, a seemingly unfair denial may lead you to wonder if other considerations, such as bias or retaliation rather than merit, may be at play. If you’ve been denied tenure — or have been warned that your tenure application is unlikely to succeed — certain warning signs can help you determine whether the decision may be biased and what you can do about it.

How Can I Tell Whether My Tenure Denial Was Discriminatory?

A primary indicator of discrimination is that the unsuccessful tenure candidate has the same merits in terms of research, experience, teaching, or service but differs from the successful candidate by identifying with or belonging to a different class or demographic group than those granted tenure.

A “protected class” — also known as a “protected category” — is a group of people with a common characteristic who are legally protected from employment discrimination on the basis of that characteristic. Federal employment laws prohibit discrimination based on characteristics including but not limited to:

• Race
• Religion
• Gender identity
• Sexual orientation
• Disability
• National Origin
• Age (for workers age 40 and older)

State and local laws may protect additional characteristics such as marital status, political affiliation, and source of income.

Being a member of a protected group does not, by itself, establish that your tenure denial was discriminatory. There would need to be evidence that your protected characteristic played a role in the decision.

Were Similar Tenure Candidates Treated Differently?

Comparing your record with those of successful tenure candidates can help uncover possible discrimination. You will want to look at how you might be the same as the successful candidates to then determine what might have been the difference that resulted in their success and your denial.

In other words: Who is your comparator?

In employment discrimination cases, a person in a similar position who was treated more favorably is called a “comparator.” In a tenure case, that might be another professor in the same department who was considered for tenure at roughly the same time and had similar qualifications, experience, and professional achievements. Keep in mind that no two academic careers are identical, so a comparison will never be perfect.

Consider questions such as:

• Did another candidate with comparable qualifications receive tenure?
• Were your research, teaching, or service evaluated more harshly?
• Were standards applied to you that were not applied to other candidates?
• Were weaknesses overlooked for successful candidates but emphasized in your case?
• Do the candidates receiving tenure differ from you in race, sex, age, or another protected characteristic?

Comparators help provide evidence that the decision to award tenure was based on an unfair or unlawful basis. If the only difference between you and the successful candidates is gender, for example, you could argue that your gender was the reason you were denied tenure.

Recent tenure decisions within the same department are particularly useful. A comparison to an academic granted tenure within the last five years is of much greater weight than a comparison to a successful applicant more than 10 years ago.

How Do I Investigate My Tenure Decision When the Information Is Confidential?

Tenure decisions can be difficult to investigate because deliberations, votes, and other information are often confidential. A tenure denial letter may not explain everything that happened behind the scenes.

Start by talking to the people you already know. Colleagues, mentors, and others familiar with the process may know how your candidacy was viewed or where opposition developed.

If you can gauge who might have been in your corner, you can reach out to them to find out if they came across any evidence of discrimination. Someone who participated in the process may have witnessed comments or conduct suggesting that improper considerations affected the decision.

The secrecy surrounding tenure decisions, however, may mean that court-ordered discovery is the only way to uncover what was behind the decision.

It is recommended to retain your own counsel if you want to pursue legal routes to obtain information. University counsel and human resources personnel are loyal to the institution and not to individual faculty members, so they may not be looking out for your interests.

What Evidence Should I Collect if I Want to Pursue a Discrimination Case?

Observations of Biased Comments or Actions

Comments and conduct can be important evidence when they suggest that someone involved in the tenure decision held a bias against a legally protected group. Attorneys call this bias or “animus.” Animus is any negative or hostile opinion about a person or group of individuals that can affect one’s ability to remain neutral in a decision involving people belonging to that group.

Evidence of animus can demonstrate that the decision-maker behind your tenure denial had a preferred outcome regardless of your merits. Let’s say you’re a woman, and you find out that someone involved in your tenure denial said that men are easier to work with. They then supported a comparable male candidate over you. The decision-maker’s expressed preference for male colleagues could be evidence that bias was the deciding factor in their support.

The evidence doesn’t have to be direct or explicit. Euphemisms, inconsiderate and disrespectful remarks, coded language, or noticeably different treatment may become relevant when considered with other evidence. Perhaps you’re Jewish, and you notice that someone who was involved in your tenure decision tends to get more frustrated when you take time off for religious holidays but doesn’t act the same way when your Christian co-workers take time off.

If something concerning occurs, document it while your memory is fresh. Try to be as exact and detailed as possible. You can send an email to yourself using your private email account and record:

• What was said or done;
• Who said or did it;
• When and where it happened;
• Who else witnessed it; and
• How it might relate to your tenure candidacy.

Information Indicating Discrimination in Previous Personnel Decisions

Previous personnel decisions can establish a pattern where bias can be inferred. Look backward to see if the same person who denied your tenure has a history of denying people in your legally protected class. This can extend further than just tenure decisions. You’ll want to look at hiring and promotional decisions as well.

Ideally, you’d be able to compare multiple personnel decisions made by the same person regarding the same candidate. For example, a man hires a woman, knowing that she is a woman, and then that same man denies that woman tenure. This example can lead to the inference that bias wasn’t the motivating factor because the man had no issue hiring her in the first place. In legal terms, this is known as the “same actor inference.”

On the other hand, let’s say the female candidate was hired by a woman instead. The female candidate was later denied tenure by a man who historically tended to hire, promote, and/or approve tenure for mostly men. That can be an indicator of bias.

This is not to say that it is impossible for the person who hired you to later discriminate against you for a promotional or tenure decision. However, it can be more difficult to argue that you were denied tenure because of your protected class.

Documentation Related to Your Tenure or Job Performance

Records created at different stages of the tenure process may also become important. Keep copies of materials available to you, including:

• Tenure policies and written evaluation criteria;
• Your tenure application and supporting materials;
• Performance reviews and prior evaluations;
• Emails and other communications about your candidacy;
• Written decisions or recommendations made during the tenure process; and
• Any other information you lawfully possess concerning other tenure decisions.

Note the use of the words “lawfully possess.” Evidence gathering is not an acceptable excuse for digging into files that you don’t already have a right to access. Stick to keeping copies of documents that you come across in the natural course of your job and that do not contain confidential information that doesn’t pertain to you.

Keep the records you’ve gathered in a location you can access without relying on your employer’s systems.

How Can I Prove That Being Denied Tenure Harmed Me?

Harm is a necessary aspect of a discrimination claim. Simply being denied tenure is insufficient for a successful claim; you must also prove that you have suffered damage as a result of the denial. A discriminatory tenure denial can cause economic, reputational, and emotional harm.

Economic Harm

Being denied tenure typically means the end of a candidate’s time with that university (although they may be granted a “terminal” contract year that’ll give them time to find another job). The loss of their position also generally means losing income, retirement contributions, health insurance, and other benefits.

Even if they find another job quickly, there may be a significant difference in what they earn at their new job versus what they would’ve earned in the tenured position. This loss of potential earnings can also be considered economic harm.

Pay records, benefits statements, employment contracts, and information about the compensation associated with the tenured position can help document these losses.

Reputational Harm

The economic harm a person experiences can be exacerbated by reputational harm, which may make finding another job difficult. A tenure denial can be a stain on a professor’s reputation, and it may affect their standing among their peers and impact the opportunities available to them.

For example, a faculty member who previously received regular invitations to speak at conferences might receive significantly fewer invitations after the denial. Other evidence of reputational harm could include unsuccessful job applications, fewer invitations to consult or publish academic pieces, or testimony from colleagues about changes in the professor’s professional standing.

Emotional Harm

A discriminatory tenure denial also may cause anxiety, depression, or other emotional distress. Evidence of emotional harm may include the professor’s own testimony, testimony from family members or others who have observed changes in their mental and physical health, or records and testimony from a therapist or other health care provider.

You may be able to receive monetary compensation or remedies — such as back pay, reinstatement, or damages — depending on the law involved and the circumstances of your case.

Can Denial of Tenure Be Retaliation?

Yes, tenure denial might be retaliation if your situation involves three elements:

• Protected activity: Many employment laws forbid employer retaliation against workers who engage in legally protected activity. This can include refusing to follow orders that would constitute violating the law, participating in an investigation into illegal behavior, or complaining about unlawful discrimination in your workplace.
• Adverse employment action: There was an action taken against you that negatively impacted your job or your work conditions. Retaliatory acts can take many forms, including denial of tenure, unfairly low performance evaluations, transfers to less desirable positions, or termination.
• Connection between the protected activity and the adverse action: Your employer took an adverse action against you because of your protected activity. Employers will rarely make it explicit that they’re retaliating against you, but behavior or statements indicating your employer is upset about the protected activity may be enough proof. A short period of time between your protected activity and an adverse action can also indicate retaliation. It’s suspicious if you’re denied tenure only days after reporting discrimination, and it is even more suspicious if up to that point in time you were on track to get tenure.

What’s the Deadline for Filing a Discrimination or Retaliation Lawsuit?

The deadline for filing a claim depends on the law. Claims under federal laws — such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Genetic Information Nondiscrimination Act — generally require employees to file a charge with the U.S. Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged discrimination. There are some exceptions that may extend the deadline to 300 days, depending on local laws or the type of discrimination.

You may consider filing an internal grievance with your employer as well, but it’s important to know that the clock does not stop for an internal appeals process. The U.S. Supreme Court has held that the countdown for filing a claim starts at the time that the tenure candidate is officially notified of the tenure denial. For example, let’s say that the president of your university has to give a stamp of approval on the tenure decision, but you learned of the decision when the provost previously made their determination. The deadline for filing a claim is then based on the day you learned of the provost’s decision.

For that reason, consider speaking with an employment attorney as soon as your tenure is denied at any level so that your lawyer can help you prepare and file your claim in a timely manner.

Do I Need a Lawyer to Combat My Tenure Denial?

An attorney who specializes in representing plaintiffs and is experienced in higher education cases can guide you through the process of challenging tenure denial.

There are potential risks and rewards for any case. Litigation can be costly and time-consuming, and a weak case sometimes does more harm than good when it comes to reputation. An attorney can evaluate your case and let you know what your options are, whether you have enough evidence to pursue a legal case, and how you may be able to strengthen it.

If you suspect you were denied tenure for discriminatory or retaliatory reasons, contact The Employment Law Group to speak with an experienced attorney.

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Adam Augustine Carter is a principal at The Employment Law Group, P.C.; Ethan McSweeny is an associate at the firm.

By Nicholas Woodfield and Mary Anne Callahan

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IMPORTANT: The following article is intended as a general summary of facts and law and not as individual legal advice upon which you should rely or act. Every case is unique and specific. This article represents our firm’s best knowledge as of September 2026.

This article is an updated version of an article previously published in August 2014.

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People spend nearly 30% of their adult life at work. Being subjected to repeated insults, intimidation, humiliation, or other abusive behavior in the workplace can damage your health, career, and financial security.

But despite the serious impact of workplace bullying, there is no federal law — or even state law — that specifically prohibits it. Numerous bills have been drafted in state legislatures to address the problem, but nothing has yet made it through the legislative gauntlet to become law.

That doesn’t mean you entirely lack legal protection, however. Employees with legally protected characteristics, such as race or gender, may be protected under traditional laws against harassment and discrimination.

Workplace Protections Based on Protected Characteristics

Legal protections against harassment or discrimination are based on a person’s membership in a protected category. These categories are generally limited to innate characteristics, such as race, gender, national origin, disability, age, or religion.

There are federal laws that prohibit discrimination — such as Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA) — but there are also state laws that can provide protections for characteristics not covered at the federal level. D.C., for example, recognizes political affiliation as a protected characteristic.

Whether workplace bullying violates a law often depends on why you are being targeted. If it’s motivated by your protected characteristic, bullying can be considered illegal discrimination or harassment.

A Case Example of Workplace Bullying

Consider the case of Aarin Moss, a Virginia restaurant worker, who complained that his co-worker bullied him because of his disabilities.[1] Moss had several physical and mental disabilities, including a learning disability and a severe lung disease that ultimately required a double-lung transplant. He needed to take periodic breaks during the workday and was sometimes unable to perform certain tasks due to his pain.

According to court records, a co-worker repeatedly mocked Moss because of his disabilities. Moss testified that the co-worker told him to “get [his] lazy ass up,” accused him of “using [his] disability as an excuse,” insisted that he “needed to start picking up slack,” and called him “a weak little b*tch.” The co-worker also complained about the number of breaks Moss took and accused him of faking his condition. The co-worker’s behavior escalated to include violent threats.

Moss filed a lawsuit under federal and Virginia law, claiming that he was harassed because of his disabilities. To prove harassment under the ADA, Moss had to show that:

1. He was a qualified individual with a disability;
2. He was subjected to unwelcome behavior;
3. The harassment was based on his disability;
4. The harassment was severe or pervasive; and
5. There was some basis for assigning liability to the employer.

Proving Workplace Harassment Under the ADA

1. Employee Was a Qualified Individual With a Disability

To qualify under the ADA, you typically must have a physical or mental impairment that substantially limits one or more major life activities, and you must be able to perform the essential duties of your job (with or without a reasonable accommodation).

There is some case-by-case nuance, and the ADA can also protect people who have a history of an impairment (such as cancer that’s in remission) or people who are perceived as having an impairment. Some examples of disabilities can be found here.

2. Employee Was Subjected to Unwelcome Behavior

This is usually an easy element to meet. In Moss’s case, he complained to the manager multiple times and had his mother call the corporate complaint line after a confrontation in which his co-worker allegedly threatened to fight him in the parking lot. These actions are a clear indicator that Moss felt his workplace environment was hostile.

3. The Harassment Was Based on the Employee’s Protected Class

Here, the harassment directly related to Moss’s disability. The comments implied that Moss was “faking” his disability, “using his disability as an excuse,” or otherwise being “lazy.” As such, the court found that a jury could believe that he was harassed because of his disability.

4. The Harassment was Severe or Pervasive

This is the most difficult standard to meet. When determining if harassment was severe or pervasive, courts consider:

• The frequency and severity of the discriminatory actions;
• Whether it is physically threatening or a merely offensive verbal statement;
• Whether it unreasonably interferes with an employee’s work performance;[2] and
• Ultimately, whether the conduct is so extreme that it amounts to “a change in the terms and conditions of employment.”[3]

The court in Moss’s case concluded that the harassment could be seen as pervasive because he was subjected to demeaning conduct during five of the six shifts he worked in the span of a few weeks.

A reasonable jury could also conclude that the conduct was severe. His coworker frequently swore at him, disparaged his disability, and even threatened him with sexual and physical violence.

5. Some Basis Exists for Assigning Liability to the Employer

Employer liability depends in part on who committed the harassment and how the company responded.

If a supervisor’s harassment leads to a tangible job action — such as a termination, demotion, or loss of pay — the employer may be directly responsible.[4] If there is no tangible job action, the employer may avoid liability if it can show that it took reasonable steps to prevent and correct harassment and that the employee unreasonably failed to use those protections.[5]

When the harasser is a co-worker rather than a supervisor, the employer is generally liable only if it knew or should have known about the harassment and failed to take prompt, appropriate action.[6] In Moss’s case, he was eventually terminated by his employer after complaining about his co-worker’s harassment.

The court decided that Moss could move forward with his claims of ADA disability harassment, discrimination and retaliation.

What to Do If You’re Being Bullied at Work

It’s important to immediately report workplace bullying using your employer’s complaint procedures — even if you doubt whether the company will do anything about it. If you don’t report the harassment, your employer may attempt to argue that it was never given an opportunity to investigate or correct the problem.

Also, keep records of the incidents of harassment. Note what was said or done as well as the date, time, and location of the events.

If you meet the requirements listed in the previous section, you may be able to pursue a discrimination case. The Employment Law Group has experience representing victims of workplace bullying, bias, and harassment. Contact our firm to explore your options.

FREQUENTLY ASKED QUESTIONS

Q: Are there any U.S. states where workplace bullying is illegal?

No state currently recognizes a standalone legal claim for workplace bullying. However, some jurisdictions have expanded protections for employees who experience workplace harassment.

Washington, D.C., for example, no longer requires employees to prove that harassment was “severe or pervasive.” Instead, courts consider the totality of the circumstances. California has also eased the traditional “severe and pervasive” standard in some situations, recognizing that even a single incident of harassing conduct may be enough if it unreasonably interferes with an employee’s work performance or creates a hostile work environment.

Puerto Rico, a U.S. territory, is a notable exception. Puerto Rico has enacted a law that specifically forbids workplace bullying. The law covers repeated abusive conduct that creates an intimidating, hostile, humiliating, or offensive work environment.

Q: I think I’m being bullied at work, but I’m not sure whether it’s illegal discrimination. How can I tell?

Look for circumstantial evidence that the bullying is motivated by your protected class. Has this person applied harmful stereotypes or made false assumptions about you based on your protected class? Have they treated others in the same protected class similarly? Do they show favoritism towards others outside your protected class?

Employers rarely admit discriminatory motives, so most discrimination claims do not rely on direct evidence and are instead proven through this kind of circumstantial evidence.

Q: Should I report this behavior to Human Resources (HR) or a manager?

Reporting workplace bullying to HR or a manager can lead to several outcomes. HR may investigate your complaint, although some employers ignore these concerns.

If your report isn’t investigated, you may want to pursue legal claims instead. In that case, filing an internal complaint with your employer can help give you leverage. Referencing a protected class or discrimination in your complaint may support a retaliation claim if the harassment intensifies or you are subsequently disciplined or fired.

Q: I don’t think I can endure being bullied in my workplace any longer. What will happen if I resign?

Wanting to leave a toxic work environment is understandable, especially if you have other job opportunities elsewhere. However, if you’re interested in pursuing legal claims, resigning will likely weaken your case and legal leverage to seek severance.

The legal standard can be high — although not impossible to meet — if you resign rather than wait to be terminated. A termination can be a clear discriminatory action to point to. A resignation means that you must show that the working conditions were so intolerable that a reasonable person could not have been expected to stay.

If you’re thinking about resigning, speak with an attorney before doing so.

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[1] Moss v. Saja Rest. Group, LLC, 670 F. Supp. 3d 349, 2023 WL 3034605 (W.D. Va. 2023)
[2] Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).
[3] McIver v. Bridgestone Americas, Inc., 42 F.4th 398, 408 (4th Cir. 2022) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)).
[4] Vance v. Ball State Univ., 570 U.S. 421, 424 (2013) ((quoting Faragher, 524 U.S. at 807)
[5] Id.
[6] Id. at 449.

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Nicholas Woodfield is a principal and general counsel at The Employment Law Group, P.C.; Mary Anne Callahan is an associate at the firm.