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Discrimination and Retaliation

Individuals have the right to a work in an environment that is free from discrimination based on their immutable characteristics. If you experience mistreatment based on your membership in a protected class, you have the right to bring suit against your employer. However, sometimes this results in retaliation, either in the form of more mistreatment, or in some cases, your termination. Depending on the reasons, retaliation is sometimes legal in South Carolina, though frowned upon. If you are unsure whether you have a case against your employer or not, it can help to consult an employment law attorney.

What “At Will” Employment Means

South Carolina is what is referred to as an ‘at-will’ state, meaning that with certain exceptions, an employer can fire you for any reason – poor performance or another specific cause is not required. Technically, an employer needs no reason whatsoever to terminate an employee, but if there was no adverse reason for the termination, the employer may not imply that there was. In South Carolina, at-will also means that it is the employer’s decision as to whether an employee may view their personnel file (laws differ in other states). At-will employment is generally not something for which an employer may be sued, as in most cases it is something for which an employee signs on at the outset.

That said, at-will employment does not mean that an employer may simply terminate or demote an employee based on one or more personal characteristics. An employee’s civil rights are protected under both state and federal law. Discrimination or adverse employment action based on the following characteristics is expressly prohibited: age, sex/gender, race, religion, disability, national origin, and pregnancy. These characteristics are protected under both South Carolina state law and the federal Equal Employment Opportunity Commission.

Retaliation Claims

Sometimes, if you attempt to hold a discriminatory employer to account, you may wind up facing consequences. You may be terminated, or have your pay or benefits docked, and to do so based on protected activity is patently illegal. If this occurs, your employer may be liable for retaliatory action.

Protected activity generally falls into one of two categories. The first is exercising your rights as an employee. This would include seeking disability accommodations under the Americans With Disabilities Act, filing for workers’ compensation if you are injured on the job, or applying for leave under the Family Medical Leave Act (FMLA). The second is reporting or speaking out against unlawful activity performed by the employer. For example, reporting harassment of a minority employee to the relevant authorities, or alerting the Internal Revenue Service (IRS) to tax fraud committed, would fall under this category.

Some specific laws exist, most often at the state level, to protect specific types of conduct. For example, Sec. 41-1-80 of the South Carolina Code expressly prohibits retaliation based on workers’ compensation filing. Still, any kind of punitive action against you based on these categories (if a connection between your protected activity and your adverse employment action can be shown) has a high likelihood of incurring liability.

An Employment Attorney Can Help

While retaliation actions can seem cut and dried, the legal technicalities can make such lawsuits very complex. Often, a legal professional on your side can make a big difference. Attorney A. Christopher Potts of Hitchcock & Potts is well versed in this area of law, and will help guide you through what can be a very convoluted process. If you need a Charleston retaliation attorney, contact us today at 843-577-5000 (toll free) to set up an appointment.

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