Discrimination Complaints Under The Clean Air Act
The Clean Air Act authorizes the Environmental Protection Agency to set National Ambient Air Quality Standards in order to protect public health and the environment from air pollution. The Act regulates emissions into the air from area, stationary, and mobile sources.
Under Section 322 of the Act, employees are protected from discrimination by their employer for participating in a proceeding to enforce any requirement of the Act. Section 322, 42 U.S.C.S. § 7622, provides:
No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) — (1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or a proceeding for the administration or enforcement of any requirement imposed under this chapter or under any applicable implementation plan, (2) testified or is about to testify in any such proceeding, or (3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of this Act.
While the Environmental Protection Agency administers the general provisions of the Clean Air Act, employee complaints of discrimination are filed with and handled by the Occupational Safety and Health Administration within the Department of Labor. Such complaints must be filed within 30 days after the violation of Section 322 occurs (although that deadline may be tolled if the discrimination is continuing in nature).
Section 322 of the Clean Air Act protects employees who themselves or through others provide information, file complaints, or participate in any manner in a proceeding related to administration or enforcement of the Clean Air Act. An employee’s complaint to management or refusal to perform work due to conditions that the employee reasonably believes are unsafe or unhealthful may be considered participation in a proceeding under the Act.
Actionable discrimination under the Act is viewed broadly and includes not only termination from employment but also any discrimination in compensation, terms, conditions, or privileges of employment attributable to the employee’s participation in a Clean Air Act proceeding.
Complaints of discrimination received by OSHA are reviewed by supervisors who in turn will notify EPA of any potential environmental hazards disclosed by the complaint. The complaint letter, with witness names redacted is sent to the respondent and the local EPA office, and an investigation is conducted by OSHA. A written notice of the results of the investigation and, if appropriate, an order of abatement should be completed within 30 days.
To remedy the discrimination, the Secretary of Labor may order affirmative action to abate the discrimination. Remedies for the employee may include reinstatement with back pay, compensatory damages, and costs and expenses, including attorney and expert witness fees, incurred in complaining about the discrimination.