At the various stages of a whistleblower retaliation case, the DOL uses several factors to determine emotional distress damages. Emotional distress damages fall under compensatory (non-economic) damages and can include damages for mental anguish or pain and suffering. Generally a plaintiff seeking emotional distress damages must demonstrate: 1) objective manifestations of the distress, and 2) a causal connection between the adverse employment action and the distress.
Associational discrimination occurs when an employer discriminates against an employee based on a close relationship with another person.
Anticipatory retaliation occurs when an employer takes or threatens to take an adverse employment action against an employee before that employee reports alleged discrimination or engages in other protected activity. An employer anticipatorily retaliates when it takes or threatens to take an adverse employment action in order to dissuade or discourage the employee from engaging in future protected activity.
OSHA is required to protect the confidentiality of a witness in a whistleblower investigation to the fullest extent possible under the law. In fact, where witnesses wish to remain confidential in an OSHA investigation, the investigator is required at the start of the interview to say, “Your interview will be protected to the fullest extent of the law.” See US DOL Memo, Clarification of the Express Promise of Confidentiality Prior to Confidential Witness Interviews, https://www.whistleblowers.gov/memo/2016-07-15.
Whistleblower retaliation laws prohibit a broad range of retaliatory actions against whistleblowers, including any act that would dissuade a worker from engaging in protected whistleblowing.