Retaliation / Whistleblower




Material Adverse Action



Protected Activity

Protection of employees against retaliation can include the following:

  1. Protected External Activity - where the employee has filed a formal administrative (e.g. EEOC/ IDHR, NLRB, OSHA, or Il. Dept. of Labor) or judicial claim;
  2. Protected Internal Activity - where the employee has made an internal claim of discrimination or of other illegality (including also informal verbal or written complaints) or where the employee has participated in an investigation regarding same (e.g. being a witness and giving a verbal or written statement); and
  3. Protected Concerted Activity - where an employee has internally complained of working conditions.

Note that the “other illegality” prong of protected internal activity mentioned above generally needs to fall under the following: when the discharge (or other retaliatory action) violates a clearly mandated public policy.

This Illinois Supreme Court has defined a clearly mandated public policy as being “what is right and just and what affects the citizens of the State collectively”, and that such a policy must “strike at the heart of a citizen's social rights, duties, and responsibilities.” The Court has gone on to say that public policy is to be found in the State's Constitution, statutes and judicial decisions and, where the public policy arises from a statute or constitutional provision, it is identified by “examining the history, purpose, language and effect of the provision.” This, understandably, requires a fact sensitive analysis.

Moreover, while the typical/ “classic” retaliation claim involves a situation where an Employer terminates an Employee in retaliation for claiming discrimination, there are also other types of protected complaints. For example, in Parise v. Integrated Shipping Solutions (NDIL 2017) the Employee claimed that he was terminated in retaliation for his having internally claimed to his Employer that not been paid in accordance with his written employment contract. The Court (U.S.D.J. Joan H. Lefkow), in denying the Employer’s motion for summary judgment, found that the Employee had stated a valid retaliatory discharge claim under the Illinois Wage Payment & Collection Act.









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