Image of Leading Lawyers Representing Cybersecurity Whistleblowers

Cybersecurity Whistleblower Lawyer’s Guide to Cybersecurity Whistleblower Rewards and Protections

cybersecurity whistleblower protectionOur experienced cybersecurity whistleblower lawyers have represented Chief Information Security Officers, CIOs, compliance officers, internal and external auditors, and other cybersecurity professionals in cybersecurity whistleblower rewards and protections matters.

To find out more about whistleblower rewards and protections for cybersecurity whistleblowers, call us at 202-262-8959 for a free, confidential consultation.

 

We are well versed in the cybersecurity issues that may qualify for an SEC whistleblower award, a CFTC whistleblower award, or a False Claims Act qui tam relator award.  In addition, we have extensive experience representing cybersecurity whistleblowers in retaliation actions under the whistleblower protection provision of the Sarbanes-Oxley Act and under laws that protects employees of government contractors disclosing cybersecurity deficiencies.

See our post SEC Charges Against SolarWinds Signal Resolute Cybersecurity Enforcement and May Spur Surge in Cybersecurity Whistleblowing to SEC.

SEC Cybersecurity Enforcement Priorities

The SEC’s 2024 Examination Priorities set forth the SEC’s continued focus on broker-dealer and investment adviser cybersecurity compliance:

The Division will continue to review broker-dealers’ and advisers’ practices to prevent interruptions to mission-critical services and to protect investor information, records, and assets. Operational disruption risks remain elevated due to the proliferation of cybersecurity attacks, firms’ dispersed operations, intense weather-related events, and geopolitical concerns. Given these risks and concerns, cybersecurity remains a perennial focus area for all registrants.
The Division will focus on registrants’ policies and procedures, internal controls, oversight of third-party vendors (where applicable), governance practices, and responses to cyber-related incidents, including those related to ransomware attacks. Part of this review will consider whether registrants adequately train staff regarding their identity theft prevention program and their policies and procedures designed to protect customer records and information.
With respect to third-party products and services in particular, the Division will continue to assess how registrants identify and address risks to essential business operations. In connection with its mission to inform policy, the Division will also look at the concentration risk associated with the use of third-party providers, including how registrants are managing this risk and the potential impact to the U.S. securities markets.

In addition, many broker-dealers and advisers consist of a main office and multiple other branch offices. Examinations of broker-dealers and advisers will continue to look at firms’ practices to prevent account intrusions and safeguard customer records and information, including personally identifiable information, especially as it pertains to their multiple other offices.
Lastly, the Commission adopted rule changes to shorten the standard settlement cycle for most broker-dealer
transactions from two business days after the trade date to one business day after the trade date. In connection with this change, the Division will assess registrant preparations associated with this shortening of the settlement cycle, which has a compliance date of May 28, 2024.
Examinations of broker-dealers and advisers will continue to look at firms’ practices to promote cyber resiliency. Reviews will include firm practices, policies, and procedures to prevent account intrusions and safeguard customer records and information, including personally identifiable information. Additional focus will be on the cybersecurity issues associated with the use of third-party vendors, including registrant visibility into the security and integrity of third-party products and services. The Division will also review whether there has been an unauthorized use of third-party providers.

How to Qualify for an SEC Cybersecurity Whistleblower Award

Sarbanes-Oxley and Dodd-Frank Protections for Cybersecurity Whistleblowers

Cybersecurity False Claims Act Whistleblower Rewards and Protections

False Claims Act Whistleblower Protection Law

Cybersecurity Whistleblower Protection Against Retaliation

Cybersecurity SEC Whistleblower Cases

The SEC can take enforcement action for a wide variety of cybersecurity violations, including:

  • Third-party risks – monitoring vendors and having a process in place to identify third-party breaches and disclosing the impact of the breach;
  • Failure to protect customer data, including HIPPA-protected information, PII, and intellectual property;
  • False representations about breaches; and
  • Inadequate processes or controls escalate cybersecurity issues.

cybersecurity whistleblower attorneyThe whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims and have achieved substantial recoveries for CISOs, CIOs, and other senior professionals.  To learn more about corporate whistleblower protections, see our Sarbanes-Oxley Whistleblower Protection FAQ.  Click here to read client testimonials about the firm’s work in SOX whistleblower matters and other employment-related litigation.

To schedule a free preliminary consultation, click here or call us at 202-262-8959.

 

Sarbanes-Oxley Whistleblower Protection for Cybersecurity Whistleblowing

The whistleblower protection provision of the Sarbanes-Oxley Act provides robust protection to cybersecurity whistleblowers, and indeed some SOX whistleblowers have achieved substantial recoveries.   Leading whistleblower law firm Zuckerman Law has issued a guide to the SOX whistleblower protection law: Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.  The guide summarizes SOX whistleblower protections and offers concrete tips for corporate whistleblowers based on lessons learned during years of litigating SOX whistleblower cases.

The goal of the guide is to arm corporate whistleblowers with the knowledge to effectively combat whistleblower retaliation, avoid the pitfalls that can weaken a SOX whistleblower case, and formulate an effective strategy to obtain the maximum recovery.SOX whistleblower protection

 

SEC Whistleblower Process

Cybersecurity Whistleblower Protection Resources 

 

Whistleblower attorney Dallas Hammer is a leading cybersecurity whistleblower attorney and has helped whistleblowers disclose significant wrongdoing concerning cybersecurity, information security, and data privacy.  He has also written extensively about protections for cybersecurity whistleblowers, including the following publications:

Dallas Hammer was interviewed by Corporate Crime Reporter regarding the rise of cybersecurity whistleblowing.

Hammer explained that raising concerns about cybersecurity issues qualifies for protection under the Sarbanes-Oxley whistleblower law: He cited as an example the Prioleau whistleblower case: “That case is about an employee who raised cybersecurity concerns about two policies that contradicted each other. He raised those through his chain of command. He was ignored and experienced retaliation. The question was whether blowing the whistle on these cybersecurity issues qualified for protection under the Sarbanes Oxley Act, which was originally passed with more of a focus on corporate and audit fraud. The Administrative Review Board of the Department of Labor found that such a disclosure was in fact protected.”

In the article, Hammer also discusses his substantial experience representing whistleblowers that have disclosed cybersecurity vulnerabilities and weaknesses in information technology internal controls.  He noted that cybersecurity whistleblowers that he represented have disclosed important compliance issues in many industries: “What we have seen in other contexts — for example, fraud on the government in general — is that when people start to listen to whistleblowers, it does help fix the problem. It brings a new set of eyes — eyes that are in a position to know things that outside regulators do not know, that the public at large does not know. It helps fix the problem.”

ABOUT ZUCKERMAN LAW

Summary

We are a Washington, DC-based law firm that represents whistleblowers in whistleblower rewards and whistleblower retaliation matters and litigates discrimination claims on behalf of employees in the District of Columbia, Maryland, and Virginia. The firm is dedicated to zealously advocating on behalf of our clients to achieve justice and accountability.

  • Professionalism
    (5)
  • Honesty
    (5)
  • Perseverance
    (5)
Overall
5
Sending
User Review
5 (1 vote)

 

Image of Workplace Discrimination and Retaliation: Know Your Rights

Top-Rated Discrimination Law Firm

The workplace discrimination attorneys at Zuckerman Law are deeply committed to ensuring that our clients are afforded equal opportunity in the workplace.  Eric Bachman, Chair of the Firm’s Workplace Discrimination Practice and ADA Lawyer, has dedicated his career to zealous advocacy for victims of discrimination and has obtained substantial wins both in private practice and in senior positions at the U.S. Office of Special Counsel (OSC) and the Department of Justice Civil Rights Division.  Bachman’s wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain.

This page provides an overview of issues that frequently arise in discrimination and retaliation cases and offers 50 short video answers to frequently asked questions about workplace discrimination.

Discrimination cases can be complex and the only way to know if you have a claim is to get advice on your specific situation.  To schedule a consultation, contact Eric Bachman at (202) 769-1681.

Frequently Asked Questions About Discrimination and Retaliation

Discrimination

Disability Discrimination

Retaliation

Damages or Remedies for Discrimination and Retaliation

Litigating Discrimination Claims

EEOC’s Role in Enforcing Anti-Discrimination Laws

Sexual Harassment

Guide for Victims of Sexual Harassment

The employment discrimination attorneys at Zuckerman Law recently published a guide that lays out answers to common questions asked by employees who are faced with sexual harassment or retaliation at work.

The guide provides “plain English” answers to common questions about sexual harassment, including:

  • Must the harassment come from my supervisor?
  • What defenses may my employer use against my sexual harassment claim?
  • What is the deadline for filing a sexual harassment complaint?
  • How do I prove my workplace is a “hostile work environment”?
  • What damages and remedies are available to victims of sexual harassment?

Download our Sexual Harassment Survival Guide for Employees.

Image of Maryland Whistleblower Rewards and Whistleblower Protection Lawyers

 

Maryland Whistleblower Rewards and Whistleblower Protection Lawyers

To find out if you may qualify for a whistleblower award or if you have a claim for whistleblower retaliation, click here, or call us at 202-262-8959.

Our experienced and effective whistleblower rewards lawyers can help you determine if you qualify for a whistleblower reward and work with you to maximize your recovery under various whistleblower reward programs, including the following:

U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area.

See our tips to get the maximum damages in a Maryland whistleblower retaliation case.

Click here to read reviews from clients that we have represented in whistleblower rewards and whistleblower retaliation matters.

Maryland False Claims Act Whistleblower Lawyers

Maryland False Claims Act whistleblowers are eligible for a qui tam whistleblower award.  Under the Maryland False Claims Act, MD Code, Title 8, a qui tam relator can bring an action on behalf of Maryland for a violation of the Act, which prohibits “a request or demand, under a contract or otherwise, for money or other property, whether or not the governmental entity has title to the money or property, that is:

(i) presented to an officer, employee, or agent of a governmental entity; or

(ii) made to a contractor, a grantee, or another recipient, if the money or other property is to be spent or used on a governmental entity’s behalf or to advance an interest of a governmental entity, and the governmental entity:

1. provides or has provided any portion of the money or other property requested or demanded; or

2. will reimburse the contractor, grantee, or other recipient for any portion of the money or other property that is requested or demanded.”

Under the MD False Claims Act, a person may not:

  1. “knowingly present or cause to be presented a false or fraudulent claim for payment or approval;
  2. knowingly make, use, or cause to be made or used a false record or statement material to a false or fraudulent claim;
  3. conspire to commit a violation under this title;
  4. have possession, custody, or control of money or other property used or to be used by or on behalf of a governmental entity and knowingly deliver or cause to be delivered to the governmental entity less than all of that money or other property;
  5. (5) (i) be authorized to make or deliver a receipt or other document certifying receipt of money or other property used or to be used by a governmental entity; and (ii) make or deliver a receipt or document intending to defraud the governmental entity, knowing that the information contained in the receipt or document is not true;
  6. knowingly buy or receive as a pledge of an obligation or a debt publicly owned property from an officer, employee, or agent of a governmental entity who lawfully may not sell or pledge the property;
  7. knowingly make, use, or cause to be made or used a false record or statement material to an obligation to pay or transmit money or other property to a governmental entity;
  8. knowingly conceal, or knowingly and improperly avoid or decrease, an obligation to pay or transmit money or other property to a governmental entity, including misrepresenting the time at which a trade was made to make the transaction appear less favorable; or
  9. knowingly make any other false or fraudulent claim against a governmental entity.”

If the qui tam action is successful, the relator is eligible for a whistleblower reward ranging from 15% to 25% of the proceeds.

The Maryland False Claims Act also prohibits retaliation for:

  1. acting lawfully in furtherance of a false claim action, including an investigation for, initiation of, testimony for, or assistance in a qui tam action;
  2. disclosing or threatening to disclose the person’s false claim;
  3. providing information or testifying regarding a false claim; or
  4. objecting or refusing to participate in a practice the employee, contractor, or grantor reasonably believes to be a false claim.

Remedies for retaliation include:

  1. reinstatement;
  2. two times the amount of back pay;
  3. punitive damages; and
  4. compensation for other damages, including litigation costs, and attorney’s fees.

Maryland Health Care Worker Whistleblower Protection Act Lawyers

Maryland’s Health Care Worker Whistleblower Protection Act, Md. Code Ann., Health Occ. §§ 1-501-1-506, protects a licensed or certified health care worker in Maryland, except for a State employee, where 

  1. The employee has a reasonable, good faith belief that the employer has, or still is, engaged in an activity, policy, or practice that is in violation of a law, rule, or regulation;
  2. The employer’s activity, policy, or practice that is the subject of the employee’s disclosure poses a substantial and specific danger to the public health or safety; and
  3. Before reporting to the board:

The employee has reported the activity, policy, or practice to a supervisor or administrator of the employer in writing and afforded the employer a reasonable opportunity to correct the activity, policy, or practice; or

If the employer has a corporate compliance plan specifying who to notify of an alleged violation of a rule, law, or regulation, the employee has followed the plan.

Remedies include:

  1. Reinstatement to the same, or an equivalent position;
  2. Removal of any adverse personnel record entries;
  3. Compensation for lost wages, benefits, and other remuneration; and
  4. Attorney fees and litigation costs.

The statute of limitations is one year after the employee first became aware of the violation.

Whistleblower Damages and Remedies for Maryland Whistleblowers

Maryland is generally an at-will employment state, but there are statutory and common law remedies for whistleblowers that have suffered retaliation for disclosing unlawful conduct.  In addition, Maryland whistleblowers are eligible for financial rewards for reporting certain types of fraud.

Sarbanes-Oxley Whistleblower Protection for Maryland Corporate Whistleblowers

The whistleblower protection provision of SOX protects:

  • employees, officers, and agents of publicly traded companies (companies issuing securities registered under section 12 of the Securities Exchange Act of 1934 or required to file reports under section 15(d) of the Securities Exchange Act of 1934);
  • employees of any subsidiary or affiliate of a publicly-traded company whose financial information is included in the consolidated financial statements of such company;
  • employees of contractors or subcontractors of public companies, including the attorneys and accountants who prepare public companies’ SEC filings;[i] and
  • employees of nationally recognized statistical rating organizations (as defined in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c).

Whistleblowers are protected under SOX for providing information, causing information to be provided, or otherwise assisting in an investigation regarding any conduct disclosing conduct that they reasonably believe violates:

  • federal criminal prohibitions against securities fraud, bank fraud mail fraud, or wire fraud;
  • any rule or regulation of the Securities and Exchange Commission (“SEC”); or
  • any provision of federal law relating to fraud against shareholders

when the information or assistance is provided to or the investigation is conducted by:

  • a federal regulatory or law enforcement agency;
  • any Member of Congress or any committee of Congress; or
  • a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct).

Significantly, SOX protects internal disclosures, such as an employee raising a concern to a supervisor about misleading financial data in an SEC filing.

To learn more about corporate whistleblower protections, download our free guide titled Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.SOX whistleblower protection

To learn about federal whistleblower protection laws, visit our webpage about whistleblower protections for private-sector employees.

Whistleblower Protections for Employees of Maryland Federal Government Contractors and Grantees

Employees of federal government contractors and grantees in Maryland are protected from retaliation under the anti-retaliation provision of the False Claims Act and the NDAA.

The anti-retaliation provision of the False Claims Act protects steps taken in furtherance of a potential or actual qui tam action and efforts to stop 1 or more violations of the FCA.  Protected conduct includes raising concerns to a supervisor about fraud on the government or opposing fraudulent billing practices.

Recently the Second Circuit held that a refusal to violate the False Claims Act is protected under the FCA’s anti-retaliation provision.

Prevailing in a False Claims Act retaliation claim requires a showing that:

  1. the employee engaged in protected activity;
  2. the employer had knowledge that the employee was engaged in protected activity;
  3. the employer took an action that had a negative effect on the terms, conditions, or privileges of employment, such as termination, demotion, suspension, harassment and any other act that would dissuade a reasonable person from reporting violations of the False Claims Act; and
  4. the employer retaliated against the employee because of this conduct.

The scope of protected whistleblowing under the NDAA whistleblower protection provision is far broader than the scope of protected conduct under the False Claims Act.  Under the NDAA whistleblower protection provisions, protected conduct includes the disclosure of information that the employee reasonably believes is evidence of:

  • gross mismanagement of a Federal contract or grant;
  • a gross waste of Federal funds;
  • an abuse of authority  relating to a Federal contract or grant; or
  • a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract.

To be protected, the disclosure must be made to a Member of Congress or Congressional committee, an IG, the GAO, a federal employee responsible for contract or grant oversight or management at the relevant agency, an authorized official of DOJ or other law enforcement agency, a court or grand jury or a management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct.

See our Practical Law Practice Note: Whistleblower Protections Under the National Defense Authorization Act.

Click here to learn about the qui tam or whistleblower rewards provision of the False Claims Act.

Maryland Whistleblower Protection Law

The Maryland Whistleblower Protection Law, State Personnel and Pensions Article (“SPP”), § 5-301, et seq. protects “employees and State employees who are applicants for positions in the Executive Branch of State government” from reprisal for disclosures of information evidencing:

  • abuses of authority;
  • gross mismanagement;
  • gross wastes of money;
  • substantial and specific dangers to public safety;
  • or violations of law.

SPP § 5-305.

The statute of limitations for filing a claim is 6 months after the employee first knew of or reasonably should have known of the retaliation. A court may award costs and reasonable attorney’s fees to a prevailing complainant.  The purpose of the Maryland Whistleblower Law is to prevent a State agency “from using a personnel action as a retaliatory measure against an employee or applicant for State employment who has made a disclosure of illegality or impropriety.”

Within 60 days of the filing of a complaint, the Maryland Department of Budget and Management’s, Statewide Equal Employment Opportunity Coordinator shall investigate the complaint and issue a written decision. Within 10 days after receiving a decision, the complainant may appeal the decision to the Office of Administrative Hearings.

The Maryland Whistleblower Law is interpreted in accordance with its federal counterpart, the Whistleblower Protection Act, 5 U.S.C. § 2302 (2018). See Montgomery v. E. Corr. Inst., 835 A.2d 169, 178 (Md. 2003) (noting that the Maryland Whistleblower Law was patterned after the Whistleblower Protection Act, that the language of SP&P § 5-305 is similar to that of § 2302(b)(8), and that in such situations, interpretations of the federal statute are persuasive regarding the state statute).

Whistleblower Protections for Employees of Maryland Contractors

A whistleblower employed at a Maryland contractor that suffers retaliation can bring a claim within one year of the alleged violation. Md. Code Ann., State Finance and Procurement § 11-303.  Covered employers include any “person engaged in a business, industry, profession, trade, or other enterprise that enters a procurement contract with a unit [of Maryland’s government] to provide supplies or services.”

Protected whistleblowing includes disclosing information that the employee reasonably believes evidences:

  • abuse of authority, gross mismanagement, or gross waste of money;
  • a substantial and specific danger to public health or safety;
  • a violation of law; or
  • objects to or refuses to participate in any activity, policy, or practice in violation of law.

Maryland SEC Whistleblower Attorneys

The SEC whistleblower lawyers at leading Maryland SEC whistleblower law firm Zuckerman Law represent whistleblowers before the SEC disclosing fraud and other violations of federal securities laws, including:

The SEC has jurisdiction over a wide range of industries and entities – both public and private. If you have information that may qualify for an SEC whistleblower reward, contact the experienced Maryland SEC whistleblower lawyers at Zuckerman Law for a free, confidential consultation.  Click here or call a Maryland whistleblower lawyer today at 202-262-8959.

Tips for Maryland Corporate Whistleblowers to Qualify for an SEC Whistleblower Award

5 Tips for SEC Whistleblowers and Lessons Learned from SEC Whistleblower Awards

See our column in Forbes: One Billion Reasons Why The SEC Whistleblower-Reward Program Is Effective

Maryland Common Law Wrongful Discharge in Violation of Public Policy

Maryland common law provides a limited public policy exception to the at-will employment rule for wrongful termination where the discharge contravenes some clear mandate of public policy.  Courts may rely on “prior judicial opinions, legislative enactments, or administrative regulations” as the chief sources of public policy and the “declaration of public policy is normally the function of the legislative branch.”  Adler v. Am. Standard Corp., 291 Md. 31, 45, 432 A.2d 464, 472 (1981).

As wrongful discharge in violation of public policy in Maryland is a tort action, a prevailing plaintiff can obtain punitive damages.

There are three key limitations on the wrongful discharge tort:

  1. The public policy must “be reasonably discernible from prescribed constitutional or statutory mandates.”  Wholey v. Sears Roebuck, 370 Md. 38, 50-51, 803 A.2d 482, 491.  For example, terminating an employee for testifying at an official proceeding or reporting a suspected crime to the appropriate law enforcement or judicial officer is contrary to the public policy articulated in Maryland’s witness intimidation statute and is therefore actionable.
  2. Where a statute already provides a remedy, the wrongful discharge tort does to provide a duplicative remedy.  A discharge motivated by gender discrimination would not be actionable under the Maryland wrongful discharge tort because Title VII of the Civil Rights Act already provides a remedy for gender discrimination.
  3. Where a wrongful discharge action is based on whistleblowing, the employee must report the suspected criminal activity to the appropriate law enforcement or judicial official, not merely investigate suspected wrongdoing and discuss that investigation with co-employees or supervisors.

Click here to read about additional whistleblower protections under Maryland law.

Note that where there is a statutory remedy for retaliation, a whistleblower might be barred from simultaneously bringing an abusive discharge claim.

Top-Rated Maryland Whistleblower Law Firm

We have extensive experience representing whistleblowers under a variety of whistleblower protection laws.  See our client testimonials by clicking here.

  • U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area.
  • Described by the National Law Journal as a “leading whistleblower attorney,” founding Principal Jason Zuckerman has established precedent under a wide range of whistleblower protection laws and obtained substantial compensation for his clients and recoveries for the government in whistleblower rewards and whistleblower retaliation cases.  He served on the Department of Labor’s Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA’s administration of federal whistleblower protection laws.  Zuckerman also served as Senior Legal Advisor to the Special Counsel at the U.S. Office of Special Counsel, the federal agency charged with protecting whistleblowers in the federal government.  At OSC, he oversaw investigations of whistleblower claims and obtained corrective action or relief for whistleblowers.
  • Zuckerman was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” (2020, 2018, 2017, 2015, 2009, and 2007), selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2022) and in SuperLawyers in the category of labor and employment law (2012 and 2015-2022), is rated 10 out of 10 by Avvo, based largely on client reviews, and is rated AV Preeminent® by Martindale-Hubbell based on peer reviews
  • We have published extensively on whistleblower rights and protections, and speak nationwide at seminars and continuing legal education conferences.  We blog about new developments under whistleblower retaliation and rewards laws at the Whistleblower Protection Law and SEC Awards Blog, and in 2019, the National Law Review awarded Zuckerman its “Go-To Thought Leadership Award” for his analysis of developments in whistleblower law.
We are located in Chevy Chase, Maryland at 5425 Wisconsin Avenue Suite 600 Chevy Chase, MD 20815.

To schedule a consultation, click here or call us at (202) 262-8959.

best whistleblower lawyers representing whistleblowers at the SEC

SEC whistleblower rules

Image of Race Discrimination Attorneys

Civil Rights Act: Promise Unfulfilled

Congress enacted the Civil Rights Act of 1964 to achieve equality of employment opportunities.  More than half a century later, race discrimination remains all too prevalent, and systemic discrimination bars minorities from advancing in the workplace.  We are deeply committed to achieving the promise of the Civil Rights Act by vigorously combatting race discrimination in the workplace.

U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area.  Contact our race discrimination lawyers today to find out how we can help you in a workplace discrimination case. 

To schedule a preliminary consultation about race discrimination, call us at 202-262-8959, or click here.

Unacceptable Racial Glass Ceiling Discrimination Persists

As discussed in a recent article The Black Ceiling: Why African-American Women Aren’t Making It to the Top in Corporate America, there is an unacceptable glass ceiling preventing African Americans from rising to the highest ranks of American companies.  Not a single African American woman is CEO of a Fortune 500 company.  And there is just one woman on Fortune’s list of the 50 Most Powerful Women in Business.  Nearly 80% of the boards of directors of Fortunate 500 companies are male, and just 19 African Americans serve on Fortune 500 boards.

And a study performed by the Northwestern Institute for Policy Research found that in 2015, white applicants were roughly a third more likely to receive invitations for first-round interviews than African-Americans with equal job qualifications.

There is also a glass ceiling at the powerful large law firms that serve Fortune 500 companies.  According to a 2017 survey performed by the National Association of Women Lawyers, women of color comprise just 2% of equity partners at the top 200 law firms.

Forms of Race Discrimination

Title VII of the Civil Rights Act of 1964 prohibits an employer from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

Race discrimination can take many forms, including:

  • Termination of employment;
  • Denial of a promotion;
  • Racial slurs in the workplace;
  • Pay disparity; and
  • Denial of training opportunities.

In 2018, JPMorgan Chase & Co. paid $24 million to settle claims for racial discrimination. The lawsuit alleged “uniform and national in scope” discrimination against African-American financial advisors, such as assigning them to poorer bank branches, understaffing them, and failing to include them in a program for richer clients.

Proving Race Discrimination

Race discrimination can be proven through direct or circumstantial evidence.  Direct evidence consists of a specific link between the alleged discriminatory animus and the challenged adverse employment action sufficient to support a finding that an illegitimate criterion motivated the action.  An example of direct evidence is an admission by a manager that he fired an employee due to the employee’s race.

Direct evidence is rare, so most race discrimination cases are proven through circumstantial evidence, typically using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, the discrimination plaintiff must show:

  1. plaintiff is a member of a protected class;
  2. plaintiff suffered an adverse employment action; and
  3. the unfavorable action gives rise to an inference of discrimination.

“[A]n individual plaintiff may establish a prima facie case by `showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under’ Title VII.” `not intended to be an inflexible rule.'” Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1353 (2015)

Once the employee establishes a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action.   Once the employer meets that burden of production, the plaintiff has an opportunity to prove that the reasons offered by the defendant were not the true reasons for the adverse action.  This is also knows as the burden to show pretext.  Evidence of pretext may include “the employer’s better treatment of similarly situated employees outside the plaintiff’s protected group, its inconsistent or dishonest explanations, its deviation from established procedures or criteria, or the employer’s pattern of poor treatment of other employees in the same protected group as the plaintiff, or other relevant evidence that a jury could reasonably conclude evinces an illicit motive.” Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015).

There is no requirement to prove retaliatory animus: If a plaintiff can show that she was fired under suspicious circumstances and that her employer lied about its reasons for firing her, the factfinder may infer that the employer’s undisclosed retaliatory animus was the actual cause of her termination.  Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

Title VII and Section 1981 used together can help win your race discrimination case

Two important federal laws protect employees from racial discrimination:  Title VII of the 1964 Civil Rights Act (Title VII) and 42 U.S.C. 1981 (Section 1981).  Courts often analyze legal claims under these two statutes in a very similar, if not identical, fashion and the same set of facts can be pursued under both laws simultaneously.

Congress and the Supreme Court, however, have made it clear that, while these two statutes are similar, they remain separate and distinct causes of actions.  It is thus important to know how the differences between Title VII and Section 1981 can help, or potentially sink, your case.

  • Title VII, but not Section 1981, prohibits disparate impact discrimination
  • Section 1981 does not require an EEOC charge to be filed
  • Section 1981 has a longer statute of limitations than Title VII
  • Section 1981 does not have any cap on damages
  • Section 1981 applies only to race discrimination while Title VII covers more classes of people

Read here for more information.

Top-Rated Race Discrimination Attorneys Serving Maryland, Virginia, and Washington DC

We are are deeply committed to combatting race discrimination in the workplace and achieving the long overdue unfulfilled promise of the Civil Rights Act.

Contact us today to find out how we can help you with a race discrimination case.  To schedule a preliminary consultation with an experienced discrimination lawyer, call us at 202-262-8959, or click here.

 

Image of Does Section 806 of SOX preempt other claims or remedies?

Does Section 806 of SOX preempt other claims or remedies?

Image of Who administers the whistleblower-protection provision of SOX?

Who administers the whistleblower-protection provision of SOX?