EEO - Retaliation: Federal

EEO - Retaliation requirements by state

EEO - Retaliation requirements by state

Authors: James Anelli, Elizabeth Clarke and Michael Gardner, LeClair Ryan

Summary

  • Title VII is the primary source of protection against retaliation, and it is enforced by the Equal Employment Opportunity Commission (EEOC). See Governing Law.
  • Retaliation occurs when an employer, employment agency or labor organization takes an adverse action against an individual because he or she engaged in protected activity and there is a causal connection between the protected activity and the adverse employment action See Establishing a Retaliation Claim.
  • There are two types of protected activity - participation and opposition. See Protected Activity.
  • In order to prove a materially adverse action, an individual must show that the employer's action would have been materially adverse to a reasonable employee by potentially dissuading a reasonable worker from making or supporting a charge of discrimination. See Adverse Employment Action.
  • An individual must establish a causal connection between the protected activity and the adverse action. See Causal Connection.
  • Employers can defend against a retaliation claim by showing that they would have taken the adverse employment action even if the employee had not participated in a protected activity. See Defending a Claim of Retaliation.
  • An employer may adopt many practices to manage and prevent retaliation including polices, training, support and follow up. See Managing and Preventing Retaliation.
  • An individual may recover various remedies in connection with a retaliation claim. See Remedies.

Governing Law

The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age and disability also prohibit retaliation against individuals who participate in an employment discrimination proceeding or who oppose unlawful discrimination.

Title VII, Section 704(a) is the primary source of protection against retaliation, and it is enforced by the Equal Employment Opportunity Commission (EEOC). Title VII prohibits an employer from retaliating against an employee for opposing harassment or discrimination based on race, color, religion, national origin and sex. In addition to Title VII, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Civil Rights Act of 1866 (+42 U.S.C. § 1981), the Civil Rights Act of 1871 (+42 U.S.C. § 1983) and the Equal Pay Act (EPA), Title II of the Genetic Nondiscrimination Act (GINA), Section 501 of the Rehabilitation Act prohibit employers from coercing, intimidating, threatening, harassing or retaliating in any other way against employees who complain, file a charge, file a lawsuit or participate in an investigation regarding:

  • Age discrimination (ADEA);
  • Disability discrimination (ADA);
  • Racial discrimination (§ 1981 and § 1983); and
  • Pay discrimination (EPA).

Laws addressing employee leaves, such as the Family and Medical Leave Act (FMLA), +29 U.S.C. § 2601, and the Uniformed Services Employment and Reemployment Rights Act (USERRA), +38 U.S.C. § 4301, also contain provisions prohibiting retaliation and adverse action against employees who exercise their rights under the respective statutes.

Additionally, retaliation claims may be based on other statutes for whistleblowing, or reporting the employer's unlawful conduct and/or safety violations. The Occupational Safety and Health Administration's (OSHA) regulations, +29 C.F.R. § 24.103, protect an employee who believes that he or she has been retaliated against by an employer for reporting believed violations.

Finally, Section 806 of the Sarbanes-Oxley Act (SOX) protects employees of publicly traded companies who report their employer or assist in an investigation of the employer's potential mail fraud, securities or bank fraud, violation of Securities and Exchange Commission (SEC) rules or regulations, or federal laws on shareholder fraud. These types of whistleblower retaliation claims closely align with EEOC-based retaliation, but have different enforcement procedures.

Establishing a Retaliation Claim

Retaliation occurs when an employer, employment agency or labor organization takes an adverse action against an individual because he or she engaged in a protected activity. In order to prove retaliation, an individual is required to establish:

  • Statutorily protected participation or opposition;
  • An adverse employment action; and
  • A causal connection between the protected activity and the adverse employment action.

The Supreme Court has articulated a framework for the plaintiff's burden in proving a causal connection between his participation or opposition and the adverse employment action. See McDonnell Douglas Corp. v. Green, +411 U.S. 792 (1973). Under that framework, a plaintiff must - at a minimum - establish at least two factors in order to prove a causal connection:

  • That the protected activity preceded the adverse action; and
  • That, before taking the adverse action, the employer was aware of the plaintiff's protected participation or opposition.

The EEOC released updated Guidance with respect to retaliation claims in 2016 as well as Questions and Answers: Enforcement Guidance on Retaliation and Related Issues and a Small Business Fact Sheet: Retaliation and Related Issues.

According to EEOC Guidance, retaliation can even occur before any protected activity takes place because, for example, an employment policy discourages an employee from exercising his or her EEO rights.

There are two types of unlawful retaliation: participation and opposition. Title VII sets forth that an employer may not terminate, demote, harass or otherwise "retaliate" against an individual for either participating in an investigation of discrimination, or for opposing any practice believed to be discriminatory.

Protected Activity

Participation

Federal law prohibits retaliation against an employee for participating in an employment discrimination proceeding. This protection applies to individuals challenging employment discrimination under federal law, in EEOC proceedings, or in state administrative or court proceedings, as well as to individuals who testify or otherwise participate in such proceedings. EEOC Guidance suggest that protected participation even extends to participation in an employer's internal EEO complaint process, even prior to a charge being filed with the EEOC.

Direct Acts of Participation. Examples of directs acts of protected participation include:

  • Filing a charge of discrimination or harassment;
  • Testifying in a hearing;
  • Cooperating with an internal investigation of alleged discriminatory practices; and
  • Requesting a reasonable accommodation based on religion or disability.

Practical Example

Sheila, a black employee of Acme Office Supply, believed that her supervisor, Carl, was discriminating against her because of her race. Carl told her racial jokes and made disparaging comments about black stereotypes and culture. Based on this behavior, Sheila filed a charge of race-based discrimination against her employer, Acme Office Supply. Sheila's claim is protected participation.

Indirect Acts of Participation. The participation clause of Title VII provides exceptionally broad protection, and the antidiscrimination statutes do not limit or condition in any way this protection for participating in the charge process. Protection against retaliation extends to actions other than direct claims, including:

  • A preliminary visit to an Equal Employment Opportunity (EEO) counselor;
  • A letter protesting the EEOC's dismissal of a charge;
  • Assisting with the information gathering process of a charge investigation;
  • Agreeing to act as a probable witness for a plaintiff;
  • Testifying on behalf of a co-worker in a hearing;
  • Assisting a fellow worker with a discrimination claim;
  • Assisting a relative with a discrimination claim; and
  • Refusing to be a cooperative witness for an employer.

Do Not Need Reasonable Good Faith Belief. Traditionally, protection from retaliation extends to individuals participating in almost any manner in discrimination proceedings, even where such individuals participated without good reason and even if the proceeding involved claims ultimately found to be false or invalid. Thus, protection under the participation clause is not lost if the employee is wrong about the merits of the charge. This is because to permit an employer to retaliate against a charging party based on its unilateral determination that the charge was unreasonable would chill the rights of all individuals protected by the antidiscrimination statutes. In other words, courts provide broad protection for individuals participating in a protected activity - and a broad definition of protected activity - so as not to discourage employees, in general, from engaging in protected activities. According to EEOC Guidance, participation in the EEOC process is protected whether or not the EEO allegation is based on a reasonable good faith belief that a violation occurred.

Practical Example

Diane, an employee at Acme Bottling Company, has applied for three different promotions over past year, but she has not been awarded any of them. Because of Acme's failure to promote her, Diane believes that she is being discriminated against because of her gender. She files an EEOC claim for gender discrimination against Acme. However, during the EEOC's investigation, Acme shows that it in fact did not discriminate against Diane - or any other female - based on sex. Acme proves that the three positions Diane sought were filled with more qualified candidates and presents facts that it employs more women than men in high-ranking executive positions. Still, even though Diane's allegation was false, her claim is still protected participation.

Additionally, the individual claiming retaliation does not necessarily need to be the individual who engaged in the participation. Federal laws prohibit retaliation against someone closely related to or associated with the person exercising his or her statutory rights who actively promotes or assists with the participation. Most courts will not, however, extend protection to individuals simply because such individuals are related to individuals who participate, unless the relative actively supports the participating employee. See Thompson v. North American Stainless, LP, +131 S.Ct. 863 (January 24, 2011).

Practical Example

Terry is married to Bob, and both Terry and Bob are employees at Acme Car Sales. Some of the workers at Acme Car Sales, including Terry's supervisor, make comments to her about how men are better at selling cars than women. One co-worker even suggests that Terry should wear more revealing clothing to help her sales numbers. Terry believes that she is being discriminated against because she is a woman, so she files a charge with the EEOC. Bob fully supports Terry's actions and speaks out about her discrimination to other co-workers. After Terry files her charge, Acme Car Sales fires Bob without cause. Because of Terry and Bob's close relationship as spouses, it is unlawful for Acme Car Sales to retaliate against Bob because Terry, his wife, filed an EEOC charge. Now, both Terry and Bob may bring retaliation claims against Acme.

Opposition

Federal law also prohibits employers from retaliating against any individual for opposing any practice believed to be unlawful discrimination or for informing an employer that the employer is engaging in prohibited discrimination. This protection applies if an individual explicitly or implicitly communicates to his or her employer a belief that the employer's activity constitutes a form of employment discrimination.

Examples of Protected Opposition. Protected opposition may include the following:

  • Complaining to anyone about alleged discrimination against oneself or others;
  • Threatening to file a charge of discrimination;
  • Picketing in opposition to discrimination;
  • Refusing to obey an order reasonably believed to be discriminatory; and
  • Requesting a reasonable accommodation for a disability or religious belief.
  • Providing information in an employer's internal investigation of an EEO matter about discrimination or harassment witnessed or experienced (despite not making complaint);
  • Advising an employer on EEO compliance;
  • Resisting sexual advances or intervening to protect others;
  • Passive resistance (allowing others to express opposition); and
  • Talking to co-workers to gather information or evidence supporting a potential EEO claim.

Practical Example

Molly and Dan are co-workers performing the same job. Dan earns a higher salary than Molly. Molly tells her manager that if he fails to raise her salary to match Dan's, then she will file a lawsuit under either the federal Equal Pay Act or her state's parallel law. This statement by Molly constitutes opposition.

Practical Example

Susan, an employee at Acme Furniture, is permanently disabled and requires a wheelchair for mobility. Acme Furniture's building has a ramp so that she can access the office. However, because of expanded operations, Acme Furniture needs to move to a bigger facility, and the new building does not have a wheelchair ramp for access. Susan's supervisor tells her that he will help her access the building by pulling her up the stairs. However, this is embarrassing and inconvenient for Susan because it requires another individual's help to get to work. Susan makes requests to Human Resources that Acme install a wheelchair ramp at the new facility. Susan's request for a reasonable accommodation constitutes protected activity, and she is protected against retaliation for making such a request.

Practical Example

Wendy, a supervisor, does not follow her employer's instructions to dissuade her subordinates from filing discrimination complaints. Her refusal constitutes protected opposition and any materially adverse action taken against her based on this would be actionable retaliation.

Practical Example

Amanda and her co-worker Allison are constantly harassed by Joe, a supervisors, and Amanda tells Joe to leave them alone and stop it or else she will tell management. Amanda's actions on her own behalf and on behalf of Allison constitute protected opposition and any adverse action taken against her could amount to retaliation.

Opposition encompasses a broad range of communication. It includes any complaint or protest about alleged employment discrimination communicated to a manager, union official, co-worker, attorney, newspaper reporter, Congressperson or any other individual. Additionally, the communication may be made explicitly or implicitly, and may even be nonverbal, such as picketing or labor strikes. Because individual employees often will not know the specific requirements of antidiscrimination laws, they may make broad and ambiguous complaints of unfair treatment. Such a protest is considered protected opposition if the complaint could reasonably be interpreted as opposition to employment discrimination.

Practical Example

Tom, a black employee at Acme Computers, complains to his supervisor about racial slurs and racially-biased graffiti on the employee bathroom stalls. Even though Tom does not specify that he believes that the graffiti creates a hostile work environment based on race, his complaint can reasonably be interpreted by his supervisor as opposition to racial discrimination because of the racial basis of the graffiti. Tom's complaint, therefore, constitutes opposition.

Practical Example

Sandra and her female co-workers at Acme Products Inc. realize that male employees in the same positions received higher salaries. In response to this, and without ever speaking directly to her supervisor, Sandra joins other females in a loud protest outside of Acme Product's facilities, protesting Acme Product's unfair wages to women. Even though Sandra does not specify to her supervisor that she believes Acme Products discriminates against women based on sex, her protest can reasonably be interpreted by her supervisor as opposition to sex-based discrimination. Therefore, Sandra's complaint constitutes opposition.

Practical Example

Daniel believes that he is being discriminated against because he is Jewish. He complains to his supervisor and HR. This constitutes protected activity under Title VII because religious discrimination is unlawful under Title VII.

Additionally, opposition can include protest against discrimination made by an employee on behalf of someone else. A complaint made on behalf of another or by an employee's representative - rather than by the employee himself or herself - constitutes protected opposition by both the person who makes the complaint and the person on behalf of whom the complaint is made. Moreover, refusal by an employee to obey an order constitutes protected opposition if the individual reasonably believes that the order makes discrimination a term or condition of employment.

Practical Example

Omar and Gail are co-workers at Acme Paper. Gail sits next to Omar at work and she constantly overhears other workers at Acme Paper deriding Omar for his Muslim religious beliefs. Other workers make disparaging remarks about Omar's religion and even leave anti-Muslim articles and notes on his workspace. Omar confides in Gail that he is worried that he may be fired if he complains. Gail, however, complains to her supervisor about the discriminatory conduct against Omar. Gail's actions constitute protected opposition on behalf of herself and Omar.

Practical Example

Sam is a corrections officer at Acme Jail. For decades, the jail has followed the practice of allowing white - but not black - inmates to shower after work shifts. Sam believes that this practice is discriminatory and refuses to obey his supervisor's instruction to deny black inmates a shower. Even though the inmates are not employees of Acme Jail, the enforcement of the policy makes race discrimination a term or condition of Sam's employment. Therefore, Sam's refusal to obey the order constitutes opposition to an unlawful employment practice.

Examples of Activity Not Protected. However, employee protests against allegedly discriminatory employment practices are not protected if such protests interfere with job performance to the extent that the protests render an employee ineffective in the job. For example, the following activities would not be protected:

  • Searching and photocopying confidential documents relating to alleged discrimination and showing such documents to co-workers;
  • Making an overwhelming number of complaints based on unsupported allegations;
  • Badgering a subordinate employee to provide a witness statement in support of an EEOC charge; or
  • Coercing a co-worker into changing his or her statement about a charge.

Thus, if the activity rises to the level of unlawful actions or threats, then the retaliation provisions do not immunize the worker from appropriate discipline or discharge. Opposition to perceived discrimination does not serve as a license for the employee to neglect job duties. EEOC Guidance makes clear that opposition must be conducted in a reasonable manner.

Reasonableness Requirement. Complaints of opposition are protected from retaliation as long as:

  • The individual's action is based on a reasonable, good faith belief that the complained of practice violates antidiscrimination law; and
  • The manner of opposition is reasonable.

Reasonable Belief Requirement. Although the participation clause applies to all individuals who participate in the complaint process regardless of the validity or reasonableness of the charge, the opposition clause only applies to those who protest practices that are reasonably and in good faith believed to be unlawful.

First, in order to be protected from retaliation, an individual's opposition must be based on a reasonable and good faith belief that the opposed practices are unlawful. Therefore, it is illegal retaliation whether or not the challenged practice is ultimately determined to be unlawful. As one court stated, requiring a finding of actual illegality would undermine Title VII's central purpose, "the elimination of employment discrimination by informal means," and would destroy one of the primary ways of achieving that purpose, "the frank and non-disruptive exchange of ideas between employers and employees." See Berg v. La Crosse Cooler Co., +612 F.2d 1041, 1045 (7th Cir. 1980).

Practical Example

Acme Inc. advertises an opening for a new position. Laura, an employee at Acme Inc., seeks promotion by applying for the position through her supervisor. Laura's experience and education are up to the standard required by the position and she believes that she is qualified for the promotion. However, Acme Inc. promotes a male employee instead of Laura. Laura complains to the manager at Acme Inc. that her supervisor failed to promote her because of her gender. Laura has engaged in protected opposition regardless of whether the promotion decision was in fact discriminatory because Laura has a reasonable and good faith belief that discrimination occurred.

However, if the individual's opposition is unreasonable and without a good faith basis for believing that the opposed practices are unlawful, then he or she is not engaging in protected opposition.

Practical Example

Acme Inc. advertises an opening for a new position in the legal department. The position is available only for a licensed attorney. Helen, an employee at Acme Inc., seeks promotion by applying for the position through her supervisor. However, Helen did not go to law school and is not a licensed attorney. Acme Inc. promotes a male employee instead of Helen. Helen complains that her supervisor failed to promote her because of her gender, even though Helen knew that it was necessary to be a licensed attorney to perform this job. Helen has not engaged in protected opposition because she does not have a reasonable and good faith belief that she was rejected because of sex discrimination.

Practical Example

Elaine, who is Asian, sought a job as a CPA with Acme, despite the fact that she knew she lacked the requisite certifications. When Elaine did not get the job, she claimed she was retaliated against because she was Asian and a woman. However, she has not engaged in opposition because she did not have a reasonable good faith belief that she was rejected based on her gender, race or national origin.

Manner of Opposition Must be Reasonable. The manner of opposition must be reasonable. Title VII protects not only complaints to the employer, but also complaints to others about the employer such as managers, union officials, co-workers, attorneys or law enforcement. Additionally, calling public attention to alleged discrimination may constitute reasonable opposition if connected to alleged violation of EEO laws. Thus, opposition may include:

  • Picketing;
  • Expressing support for co-workers who have filed formal charges;
  • Going outside a chain of command or internal compliant procedure to bring a discrimination claim; and
  • Advising an employer that the employee is going to file a charge.

However, the following activity will not be considered reasonable:

  • Making a number of false EEO claims;
  • Harassing a subordinate employee to provide a witness statement in an EEOC charge; or
  • Committing or threatening violence to life or property.

Whether an act of opposition is reasonable or unreasonable depends on the specific facts and circumstances of the situation.

Who May Engage in Protected Activity. Protections against retaliation apply to all employees of any employer, employment agency or labor organization covered by EEO laws including applicants, current employees (full-time, part-time, probationary, seasonal and temporary) and former employees).

The following individuals who may engage in protected activity include:

  • Individuals who participate in the EEO process in any way as a complainant (on behalf of themselves or others), representative or witness regardless of job duties or managerial status;
  • Individual who oppose discrimination on behalf of themselves or others, even if the underlying allegation lacks merit;
  • Individuals who tell their employer they intent to file an EEO charge or lawsuit, even if the individual does not actually file it;
  • Individual who have engaged in protected conduct for a different employer (i.e., an individual is not hired because she filed an EEOC charge against her former employer)
  • Individual who engaged in protected activity while employed but were not retaliated against until after the employment relationship ended (i.e. employer retaliated by providing untruthful negative job reference or refusing to provide a job reference);
  • Individuals who raise allegations of discrimination but do not meet threshold under discrimination laws;
  • Individuals whose protected activity relates to any ADA provisions.
  • Individuals that an employer mistakenly believes has engaged in protected activity.

An employer cannot fail to hire an applicant because he or she filed an EEO complaint against a prior employer or provide a false negative job reference to punish a former employee. Protections also apply regardless of applicant or employee's citizenship or work authorization. For example, if an employer suspects, but does not attempt to verify, an individual's work authorization and the worker then raises an EEO complaint and the employer threatens to expose the worker's immigration status as punishment for complaining about EEO violations, the this may be retaliation.

Employees are not shielded from consequences of poor performance or misconduct if the employee raises an internal EEO allegation or files a discrimination claim with the EEOC. Neither participation nor opposition provide an employee with permission to neglect job duties, violate employer rules, or do anything else that would result in poor performance or misconduct. Antiretaliation laws are very broad but an employer is free to discipline employees for poor performance and misconduct and improper behavior even if the employee has filed an EEO complaint. Whether an employer's action was motivated by legitimate or illegitimate reasons will depend on the facts and circumstances.

If a supervisor recommends adverse action after an employee files an EEOC charge, it is best practice to independently evaluate whether the adverse action is appropriate which may reduce the chance of potential retaliation.

Inquiries and Discussions Related to Pay and Compensation. An employer may not retaliate against an individual under Title VII and other EEO laws for discussing compensation information.

Practical Example

Marie learns that she may be earning less than the males that have the same position as her and approaches her supervisor to voice her suspicions. This constitutes protected opposition.

Practical Example

Nicole discusses with the other women she works with that she believes they are being paid less than the men that hold the same position. Nicole is then disciplined this as the employer has a policy prohibiting employees from discussing pay. Nicole's conduct amounts to protected opposition and any action taken against her may be actionable retaliation. The employer policy does not shield it from liability.

Additionally discussions regarding wages and compensation may also be protected under the National Labor Relations Act and Department of Labor provisions with regard to federal contractors concerning pay transparency.

Adverse Employment Action

An adverse employment action is an action taken to try to keep an individual from opposing a discriminatory practice or from participating in an employment discrimination proceeding. An adverse employment action includes any act likely to deter a reasonable individual from pursuing his or her rights. In order to succeed on a claim of retaliation, the plaintiff employee must show that a reasonable employee would have found the challenged action materially adverse, which in this context means the action might have dissuaded or deterred a reasonable worker from making or supporting a charge of discrimination. In other words, the employer's adverse action must be so severe that it would deter other employees from participating in a charge of discrimination or opposing a practice of discrimination. EEOC Guidance suggests that whether an action is materially adverse depends on the facts and circumstances of each case.

Examples of adverse employment actions include:

  • Termination;
  • Suspension;
  • Reduction in pay or denial of a raise;
  • Reduction in hours;
  • Placement on involuntary or unpaid leave;
  • Refusal to impose discipline on the employee's supervisor;
  • Negative statements about an employee that may affect his or her reputation;
  • Refusal to hire;
  • Denial of promotion;
  • Increased surveillance;
  • Threats of any kind;
  • Harassing conduct;
  • Changing the work schedule of an individual who is a caretaker
  • Excluding an employee from a weekly training lunch providing opportunities for professional advancement;
  • Work related threats, warnings or reprimands;
  • Negative or lowered evaluations;
  • Transfers to a less prestigious or desirable work, position or work location;
  • Threatening reassignment, securitizing work or attendance more closely than other employees without justification;
  • Removing supervisory responsibilities;
  • Engaging in physically or verbally abusive behavior reasonably likely to deter protected activity even if it is not severe and pervasive enough to rise to the level of a hostile work environment;
  • Requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorization because of protected activity;
  • Terminating a union grievance process or other action to block action to other remedial measures;
  • Taking or threatening to take action against a close family who would then also have a retaliation claim even if the individual was not an employee.
  • Assigning disproportionate workload; or
  • Sharing an employee's confidential EEO information.

Retaliation may be an employer action that is related to work or one that has no tangible effect on employment or even an action taking place exclusively outside of work as long as it may dissuade a reasonable person form engaging in protected activity.

When evaluating the facts and circumstances, the following additional actions may be retaliatory:

  • Making false reports to government authorities or in the media; or
  • Filing a civil action.

Practical Example

Michael, a black employee of Acme Boxes, Inc., complains that the store in which he works is racially hostile toward him. Michael's co-workers tell racial jokes and refer to him with racially derogatory names. In response, Acme Boxes transfers Michael to another store. This action could be viewed as retaliatory if the new store is farther from Michael's home or is less desirable to Michael in some other way.

Action Must Deter Protected Activity

In Burlington Northern and Santa Fe Ry. Co. v. White, +548 U.S. 53 (2006), the Supreme Court explained that "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." The Court emphasized that this standard is an objective one, and that any individual claim must be analyzed in the full context of the facts of the case. Adverse employment actions do not, however, include petty slights and annoyances, such as negative comments within an objective evaluation, "snubbing" a colleague, or negative evaluations or references that are justified by an employee's poor work performance. Similarly, the EEOC suggests that temporally transferring an employee from an office to a cubicle or that brief delays in issuing refund checks for small amounts were not materially adverse actions. Again, the adverse action must be so severe that it would deter other employees from filing charges or opposing discrimination.

Pursuant to EEOC Guidance, if an employer's action that would be reasonably likely to deter protected activity can constitute retaliation even if it does not actually stop the employee in a particular case of asserting EEO rights. An action may also be retaliatory even if it does not actually harm the employee. The extent of harm only affects the amount of compensation and damages if relation is proven.

Practical Example

Nancy files a charge with the EEOC alleging that she was denied a promotion because of her gender. One week later, her supervisor invites three other employees in her group out to lunch. Nancy is not invited. Nancy believes that the reason her supervisor excluded her was because of her EEOC charge. However, even if the supervisor chose not to invite Nancy to lunch because of the charge, this would not constitute retaliation because it is not reasonably likely to deter protected activity.

Of course, employees are not excused from continuing to perform job duties or follow the employer's legitimate workplace rules because they have filed a complaint with the EEOC or opposed discrimination. Common nonretaliatory reasons for adverse employment actions include:

  • Poor job performance
  • Inadequate qualifications for the job sought;
  • Violation of work rules;
  • Insubordination; and
  • Truthfulness in negative reviews or recommendations.

Although trivial annoyances are not actionable, a more significant retaliatory treatment that is reasonably likely to deter protected activity is unlawful. Additionally, there is no requirement that the adverse action materially affect the terms, conditions or privileges of the employment. In 2006, the Supreme Court clarified that "an employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing harm outside the workplace." Now an employee only needs to show that the employer's action "would have been materially adverse to a reasonable employee" by potentially "dissuad[ing] a reasonable worker from making or supporting a charge of discrimination." See Burlington Northern and Santa Fe Ry. Co. v. White, +548 U.S. 53 (2006). Therefore, a shift schedule change, which may be insignificant to most employees, may still constitute an adverse employment action of retaliation if it negatively affects the individual.

Practical Example

Linda works at Acme Company. Linda complains to HR that Manny, her supervisor, is sexually harassing her. In response, Acme moves Linda from the day shift to the night shift so she does not have to work with Manny any longer. With young children at home, Linda strongly prefers the day shift over the night shift. Even though Acme may not have intended to harm Linda, this reassignment could be deemed retaliatory.

Retaliation against Former Employees

Additionally, adverse actions can extend beyond employment, and an employee may be protected from retaliation even after his or her employment ends. The Supreme Court has held that protection from postemployment retaliation is consistent with the broader context of the anti-retaliation laws and their purpose of maintaining employee access to remedies.

First, an employer may be liable for retaliation against a former employee, even after the employment relationship has ended. Postemployment retaliation includes actions that are designed to interfere with the individual's prospects for employment, such as:

  • Providing an unjustified negative job reference;
  • Refusing to provide a job reference; and
  • Informing an individual's prospective employer about his or her previous protected activity of participation or opposition.
  • Filing false criminal charges against a former employee.

Retaliatory interference with an individual's prospects for future employment is unlawful regardless of whether it causes a prospective employer to actually refrain from hiring the individual. Therefore, even if the individual obtains the new job despite the negative job reference from his or her former employer, the former employer may still be liable for retaliation. In Robinson v. Shell Oil Co., +519 U.S. 337 (1997), the Supreme Court clarified that former employees receive protection under Title VII and can sue for retaliation based on a negative job reference. The Court reasoned that because the term "employees" as used in § 704(a) of Title VII includes former employees, plaintiffs can sue former employers for their allegedly retaliatory postemployment actions - such as a negative reference. However, the fact that the reference did not affect the individual's job prospects may mitigate any relief that is due.

Practical Example

Vinnie filed a claim against his former employer, Acme Accounting, for discrimination based on his religion. Because he did not enjoy his employment, Vinnie voluntarily left his position at Acme Accounting.

Vinnie subsequently applied for employment with Acme Advertising. As part of his application, Vinnie requested a recommendation from his former supervisor, Elizabeth, at Acme Accounting. Elizabeth was still angry about Vinnie's discrimination claim, and she sent a glaringly negative recommendation regarding Vinnie to Acme Advertising. In the letter, Elizabeth claimed that Vinnie was consistently tardy and insubordinate; however, those claims were false. Additionally, Elizabeth informed Acme Advertising that Vinnie had filed a discrimination claim and she warned Acme Advertising that they should not hire Vinnie in case he did it again.

Despite Elizabeth's negative letter and information, Acme Advertising hired Joe. Even though he was awarded the new position, Vinnie still may have a claim against Acme Accounting and Elizabeth for retaliation.

However, any negative job reference about an individual who engaged in protected activity does not necessarily constitute unlawful retaliation. It is only when the negative reference is based on a retaliatory motive that it is unlawful. An employer is free to provide negative job references that are truthful and accurately reflect the individual's work performance.

Secondly, an employer can be liable for retaliation for adverse actions against an individual employee for the individual's prior participation or opposition against his or her former employer.

Practical Example

Last year, Paul worked at Acme Phone Company. While employed by the Acme Phone Company, Paul complained about his co-workers discriminating against him based on his age. Younger employees received better work projects, and his co-workers harassed him and called him derogatory names based on his age. Paul filed a complaint with the EEOC against the Acme Phone Company alleging age-based discrimination.

This year, Paul switched jobs and is now employed by the Acme Cable Company. The Acme Cable Company hears about Paul's EEOC complaint at his old job, and places him under increased job surveillance to ensure that Paul will not file a claim again. The Acme Cable Company's action could be retaliatory, even though Paul engaged in protected activity against his former employer.

The fact that a job applicant has a pending charge against a previous employer is not a lawful ground for an employer refusing to hire the applicant, even though the charge's pendency might lead to the inferences that:

  • If the charging employee prevails, he or she would return to the previous employer; or
  • The potential employee is litigious, difficult or argumentative.

Moreover, adverse employment actions include fixed retaliation. Even if the employer rectifies a potentially adverse employment action, such as reinstating an employee after a suspension and providing back pay, the action may still be retaliatory. For example, the 6th Circuit Court of Appeals held that an employee who was placed on administrative leave, terminated and then reinstated with 70 percent back pay suffered an adverse employment action. Randolph v. Ohio Department of Youth Services, +453 F.3d 724, 736-37 (6th Cir. 2006).

Practical Example

Michelle filed a retaliation charge against her employer, Acme Hair Salon, for reassigning her to a different position after she complained of sexual harassment by her supervisor. After Michelle's reassignment, her supervisor reports to Acme Hair Salon that Michelle is insubordinate and Michelle is suspended without pay. After an internal investigation, Acme Hair Salon concludes that Michelle had not been insubordinate, so she is reinstated to her prior job and awarded back pay for her suspended leave. Acme Hair Salon's actions, despite Michelle's reinstatement and back pay, could constitute retaliation.

Thus, with an expanding definition of adverse employment action, the practical impact for employers will be an increase in the number of retaliation claims filed, as well as the number of such claims that survive motions for summary judgment. This new context-sensitive standard focuses on the perception of a reasonable employee, a subjective issue likely to be considered a question for the jury.

Third Party Retaliation

The individual claiming retaliation does not have to be the individual who engaged in opposition.

An employer may take an adverse action and engage in retaliation against an employee who engaged in protected activity by having a third party closely related to or associated with the complainant employee, particularly if the employer knows that the harm would dissuade a reasonable worker from engaging in protected activity.

There is no fixed class of relationships for which third party reprisals are unlawful but it generally extends to family members and close friends.

In such a situation both the employee who engaged in the protected activity and the third party subject to the materially adverse action may state a claim. The third party may have a relation claim even if the third party did not engage in protected activity and is not employed by the employer. The third party falls within the "zone of interest" sought to be protected by retaliation provisions nod has standing to see recovery for harm.

Causal Connection

Depending on the type of claim and the employer, there are different standards for proving establishing a causal connection and proving retaliation.

But-For Retaliation

For retaliation claims against private sector employers or state and local government employers, the Supreme Court has ruled that the causation standard requires an individual to prove that but for a retaliatory motive, the employer would not have taken the adverse action. But for causation means that even if there are multiple causes, the materially adverse action would not have occurred without retaliation. In order to establish a retaliation claim under Title VII, an employee must show that the employer would not have taken an adverse employment action, but-for an improper motive. The but-for standard of causation is a higher standard of proof than other claims of status-based discrimination under Title VII which only require an employee to show that his or her membership in a protected class was a motivating factor in an adverse employment practice. See University of Texas Southwestern Medical Center v Nassar, +2013 U.S. Lexis 4704 (June 24, 2013). Retaliation here does not need to be the sole cause of the employer's action but it does not have to be the only cause.

Motivating Factor

For Title VII and ADEA retaliation claims against federal government employers, the EEOC holds that the motivating factor causation standard applies. The motivating factor standard can be met even if the employer would have taken the same action absent a retaliatory motive.

Evidence of Causation Supporting a Retaliation Claim

To succeed on a retaliation claim, the evidence must show that it is more likely than not that retaliation occurred. The employer does not have to disprove the claim.

Direct Evidence. Evidence of retaliation may be direct in the form of an employer's own statements acknowledging action or intention to deter an individual from engaging in protected activity. However, there are many types of indirect evidence that may support an inference that retaliation was the cause of a materially adverse action.

Temporal Proximity. Suspicious timing between EEO protected activity and materially adverse action the order of events and the temporal proximity of the events are essential elements to any proper retaliation claim. The alleged adverse action simply cannot be "retaliatory" unless it follows the protected activity.

Practical Example

Larry, an employee at Acme Airways, was recently demoted to an inferior position with a lower salary. Two days later, Larry, who is still angry about his demotion, joins the picket lines in protest of Acme Airways' health care policy. Larry does not have a claim of retaliation against Acme Airways for his demotion, despite his protected opposition activity, because the adverse employment action preceded his protected activity.

However, order is not always enough. As evidence of a causal connection, courts also look at the proximity - or closeness in time - between an adverse action and the protected activity. A gap of only hours or days between the employee's protected activity and the adverse employment action strengthens the employee's case.

Practical Example

Rhonda believes that she is being discriminated against based on gender at work, so she files a discrimination claim with the EEOC. Two days later, Rhonda's supervisor informs her that her employment is being changed from full-time to part-time. Rhonda likely has a strong argument for a causal connection between her protected filing and the adverse employment action.

On the other hand, the more time that passes between the adverse action and the complaint, the less likely that the temporal relationship will prove a causal connection. A time lag of months may negate any inference of a causal connection, and a time lag of a year or more will almost always negate any inference of a causal connection.

Practical Example

Diego, who is Hispanic, is the only non-white employee at Acme Motors. Some of Diego's co-workers routinely tease him about his race, making jokes about his culture and commenting on his skin color. At first, Diego believed that it was all fun and games. Recently, however, the jokes have become more severe and denigrating. Diego reports this activity to his supervisor and states that he believes he is being discriminated against because of his ethnicity.

Two months later, Diego's supervisor informs him that he is being transferred to another location of Acme Motors. Diego does not mind because the new location is closer to his home. Then, five months after the first transfer, Diego is again transferred to a different location. Now, more than eight months after reporting the discrimination, Diego is worried that the transfers are connected to his claim. Because of the time lapse, however, Diego has a weaker claim of a causal connection between his complaints and the transfer.

The temporal proximity of the protected activity and the adverse employment action alone may not be sufficient to establish a causal connection. The mere fact that some adverse action is taken after an employee engages in some protected activity will not always be enough to prove retaliation. Generally, more than simply a temporal connection is needed for an employee to show genuine retaliation. Although timing may be an important clue to causation, it does not eliminate the need to show other evidence of causation. Employees seeking to prove retaliation must provide more than facts showing that the timing is suspect. An employee must produce facts that tie the adverse decision to his or her protected actions. The fact that one event came before another does not prove that the first event caused the second event. See Sause v. Exxon Coal USA, Inc., +202 F.3d 913, 920 (7th Cir. 2000).

However, when there is a pattern or atmosphere of hostility or animosity in the workplace, even a substantial lapse of time may fail to dispel the retaliatory inference.

Practical Example

Darlene, a black employee at Acme Homes, files a claim with the EEOC for race discrimination. Over the ensuing months, Darlene notices that her supervisor, Martin, repeatedly makes comments to her that he "would not hesitate to run employees out of the department." Even though Darlene believes that her work product is improving, Martin scrutinizes her work and is increasingly critical of her performance. A couple months later, Darlene notices that Martin and other managers are scrutinizing her work product. A year after Darlene's filing, she receives an extremely poor job performance review, despite the improved revenue she brought into Acme Homes. Then, 15 months after Darlene filed her claim with the EEOC, she is fired from Acme Homes. Darlene may be able to present evidence to show a pattern of hostility and animosity after her protected activity in support of her claim for retaliation.

Similarly, if there is direct evidence of a retaliatory motive that links the protected activity to the adverse action, the passage of time may not preclude a finding of causation. Direct evidence of a retaliatory motive includes any written or verbal statement by an employer that it undertook the adverse employment action because the employee engaged in protected activity.

Practical Example

Stan, a 48-year-old employee at Acme Office Supply, notices that all of the new employees are significantly younger than him. Stan's supervisor, Wendy, makes jokes about Stan being "old" and "worn out." Stan also notices that his younger co-workers are being given preferential treatment with better supplies and shifts. Based on this, Stan files a claim for age discrimination against Acme Office Supply.

Eighteen months later, Stan is fired without cause. When Wendy gives Stan his termination papers, she says, "You brought this on yourself. This never would have happened if you had not filed that claim."

Wendy's statement is direct evidence of a retaliatory motive and is strong evidence in support of a causal connection between Stan's protected filing and his termination.

Verbal or written statements evidencing a retaliatory motive. Oral or written statement made by individuals recommending or challenging the adverse action may reveal retaliatory intent by expressing retaliatory motive or revealing inconsistences and showing that the reasons provided for the adverse action are false. This includes statements made to the employee as well as others.

Comparative evidence. The employee who engaged in EEO activity was disciplined for an infraction whereas another employee who engaged in the same infraction but did not engage in EEOC activity was not disciplined

  • The employer treated another employee who had not engaged in the protected activity more favorable.
  • Employee had higher performance evaluations prior to engaging in protected activity.

Demonstrated falsity of the employer's proffered reason for adverse action. The employer changes its stated reason for adverse action over time or in different settings or provides inconsistencies and shifting explanations,

Additional Evidence of Pretext. Different pieces of evidence which viewed alone or in combination with other facts may support an inference of retaliatory intent

Defending a Claim of Retaliation

If an aggrieved employee can meet the requirements for establishing a claim of retaliation in a lawsuit as described above, the employer must provide evidence of a nonretaliatory reason for its action. In other words, the employer must show that the reason for terminating the employment relationship - or other adverse action - was legitimate and not in retaliation for the employee's protected activity. By way of example, for the employer to defend against a retaliatory termination claim, it needs to show that the employee would have been terminated even if the employee had not participated in the protected activity.

Practical Example

Tony files a discrimination claim against Acme with the EEOC. Subsequently, Tony has an altercation with a co-worker, Scott. Tony initiated the altercation and threatened physical violence to Scott. Acme has a policy prohibiting workplace violence that clearly states that a violation of the policy will result in an employee's termination. Even though Tony has filed a discrimination claim, Acme is in a strong position to terminate Tony's employment due to the altercation, because Acme can show that it would have fired Tony even if he had not filed the discrimination claim.

Employer Unaware of Protected Activity

An employee cannot establish a claim of retaliation without proving that the employer knew that the employee was engaged in protected activity. Without knowledge, there can be no retaliatory intent, and therefore no causal connection.

Practical Example

Andy files a claim for gender-based discrimination with the EEOC against his employer, Acme Products. Andy does not inform anyone at Acme Products about his charge. One day later, Andy is fired. Andy is outraged, and tells Veronica, his supervisor, "This is because of my EEOC claim, isn't it?" Veronica says that she didn't know about the claim. In fact, neither Veronica nor anyone else at Acme Products knew of Andy's complaint, nor had they received any notice from the EEOC. Andy will likely fail in a claim alleging retaliation because his employer had no knowledge of his protected activity.

Knowledge alone, however, is insufficient to prove retaliation. An employee fails to establish an inference of retaliation where the individual with knowledge of the protected activity was not the decision maker in the adverse employment action. Additionally, even where a tainted individual - who had knowledge of the protected activity - had input into an adverse employment decision, a retaliatory inference may be dispelled where an unbiased person conducts an independent investigation before finalizing the adverse decision.

However, the Supreme Court has warned that an independent investigation is not a cure-all for adverse employment actions, and an investigation alone will not relieve an employer for fault. If the independent investigation takes into account the tainted supervisor's recommendation for the adverse employment action. The Court explained that:

If the employer's investigation results in an adverse action for reasons unrelated to the supervisor's original biased action... then the employer will not be liable. But the supervisor's biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor's recommendation, entirely justified. We are aware of no principle in tort or agency law under which an employer's mere conduct of an independent investigation has a claim-preclusive effect. Nor do we think the independent investigation somehow relieves the employer of "fault." The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision.

See Staub v. Proctor Hospital, +131 S. Ct. 1186, 1193 (March 1, 2011).

Practical Example

Lenny files a claim with the EEOC against his employer, Acme Publishing, for gender-based discrimination. Christine, Lenny's supervisor, does not know about the claim, and Lenny does not inform her that he has filed a claim of discrimination. As part of its investigation, the EEOC contacts the president of Acme Publishing and informs him about Lenny's claim. Because he needs to perform a confidential internal investigation, the president does not inform Christine of Lenny's claim either.

That day, Christine demotes Lenny from full-time to part-time, apparently without cause. Lenny will have difficulty proving a causal relationship between his protected claim and his demotion because Christine did not have knowledge of his protected activity.

Practical Example

Al files a claim with the EEOC against his employer, Acme Publishing, for gender-based discrimination. When he files the claim, he also tells his supervisor, Karen, about the charges he filed. Karen does not agree and tells Al that Acme Publishing never discriminated against him because of his gender.

Karen, in addition to being Al's supervisor, serves on the 10-person Executive Committee for Acme Publishing. The next week, the Executive Committee evaluates current employees for promotion. The Executive Committee does not choose Al for a promotion, but several of his female co-workers are chosen for promotion. All 10 members of the Executive Committee evaluated candidates eligible for promotion, and each member had input into the final decision of promotions. Because of this formalized structure of promotions, Acme Publishing has a strong defense against any claim of retaliation by Al.

Employers can negate an inference of retaliatory motive from imputed or actual knowledge by implementing procedural safeguards that are adequate to show unbiased decision-making. Therefore, it is essential for employers to have policies and procedures in place to investigate adverse employment decisions, such as suspensions and terminations, in order to clearly establish a nonretaliatory motive.

Nonretaliatory Reason for Adverse Employment Action

Courts have examined countless retaliation claims and, thus, there is extensive guidance in the case law regarding what constitutes a nonretaliatory reason for discharging an employee or taking other adverse action. Some of these reasons are quite obvious, such as poor performance or a high absence rate (unless, of course, the absences are protected under another law, such as the FMLA). Other nonretaliatory reasons that courts have found legitimate include:

  • Falsifying information;
  • Violence towards co-workers;
  • Insubordination;
  • Refusal to execute work; and
  • Departmental reorganization.

This list is obviously not exhaustive. Crucially, the nonretaliatory reason needs to have evidential support. Courts are divided as to what amount of evidence is sufficient, so employers are encouraged to err on the side of caution and keep comprehensive records. An employer must keep detailed records of any adverse action against an employee so it can prove that the adverse action was legitimate in the event the employee brings a retaliation claim.

Sometimes an aggrieved employee will argue that the employer's attempt to build a file to support the adverse action is itself circumstantial evidence of retaliation. Most courts reject this argument.

An employer may provide a legitimate non-discriminatory reason for the challenged action. Such non-retaliatory reasons include:

  • Poor performance;
  • Inadequate qualifications for position sought;
  • Qualifications, application or interview performance inferior to individual selected;
  • Negative job references;
  • Misconduct (insubordination, unexcused absences, abusive or threating conduct);
  • Reduction in force/downsizing of organization;

Even if the protected activity and a materially adverse action occurred, evidence of any of the following alone or in combination may undermine an individual's ability to prove an action was caused by retaliation:

  • The employer was not aware of the protected activity;
  • There was a legitimate and non-retaliatory reason for the challenged action that the employee can provide evidence of;
  • Poor performance;
  • Misconduct such as threats, insubordination, unexcused absences, dishonesty, abusive or threatening conduct or theft;
  • Inadequate qualifications for position sought;
  • Qualifications, application or interview performance inferior to individual who was selected;
  • Negative job references and legitimate reasons for not hiring or not promoting individual;
  • Reduction in force or other downsizing; or
  • Similarly situated applicants or employees who did not engage in protected activity received similar treatment; or
  • Evidence that the challenged action would have occurred anyway despite existence of retaliatory motive in cases where but for causation standard applies

The employer does not have to disprove retaliation, but it is helpful to point to evidence supporting the employer's challenged action such as comparative evidence.

Practical Example

Rachel complains to her employer, Acme Paper that female minorities are not treated or compensated the same as males and non-minority females. Unrelated to the protected action, Acme Paper has had numerous problems with Rachel in the past with tardiness. Acme Paper has extensively documented Rachel's problems with tardiness and has previously warned Rachel that continued tardiness would result in discipline. After complaining about female minority compensation, Rachel's tardiness continues and Acme Paper terminates her job. If Rachel sues Acme Paper for retaliatory firing, Acme Paper would be in a strong position to defend the claim.

If the adverse employment action occurred soon after the employee participated in a protected activity, the employee will likely argue that the temporal link is evidence of a causal connection between the protected activity and the adverse action. In other words, the employee will argue that, because the employer took action against him or her soon after he or she participated in a protected activity, the court should conclude that the adverse action was due to his or her participation in that protected activity. Although employees are free to introduce temporal evidence, most courts require additional evidence to find in the employee's favor. For example, if the employee's only evidence is that he or she was fired soon after participating in a protected activity, but the employer provided a legitimate, credible nonretaliatory reason, then the employer has a good case. If the court finds that the employer's nonretaliatory reason lacks credibility or evidentiary support, however, the employee may prevail on the temporal/causal argument alone.

Practical Example

Kelly files a harassment charge against her employer, Acme, with the EEOC. Kelly had previously complained of harassment to various supervisors, but her complaints had been ignored. One week after filing her charge, Acme terminates Kelly's position. Acme claims that it fired her for insubordination. There are no documented instances of insubordination by Kelly. Acme cannot provide any documentation to otherwise support Kelly's termination. Kelly may be able to prevail on a retaliation claim against Acme.

If the employer can demonstrate that the adverse employment action began before the protected activity, courts will be unlikely to infer a causal relationship between the two.

Practical Example

Pedro has been stealing office supplies for an extended period of time. His employer, Acme Office Supply, became aware of Pedro's stealing and has been tracking and documenting it for about a month. Acme Office Supply plans to present the evidence to Pedro and terminate his position with the company. Soon before the company plans to meet with him, though, Pedro complains to his supervisor of national origin discrimination. Notwithstanding the complaint, Acme presents Pedro with documentation revealing his theft and terminates him. Even though Pedro was fired soon after participating in a protected activity, Acme Office Supply is in a strong position to defend a retaliation claim because the adverse action began before the protected activity.

Moreover, if the span of time between the protected activity and adverse action is significant, the argument that the two are causally connected is weaker. As the United States Court of Appeals for the Seventh Circuit observed in Wells v. Unisource Worldwide, "the hint of causation weakens as the time between the protected expression and the adverse action increases and the plaintiff must offer additional proof of a causal nexus." See Wells v. Unisource Worldwide, Inc., +289 F.3d 1001 (7th Cir. 2002).

Practical Example

Marlene, a waitress at Acme Restaurant, files a charge of age and national origin discrimination with the EEOC, alleging daily harassment for nearly 25 years. Four months later, Acme Restaurant places Marlene on administrative leave with pay. Five months later, Acme Restaurant terminates Marlene's position based on her continual violation of her supervisor's instructions and continual problems with other employees. Acme Restaurant also provides written documentation for its proffered reason.

Marlene brought suit in federal court, alleging retaliatory termination. The court found that the five-month gap between the complaint and the termination, in and of itself, could not support an inference of causation. The court observed that Acme Restaurant's treatment of Marlene did not change after she filed her EEOC charge and every disciplinary action taken against her was related to a legitimate performance issue and documented. Consequently, the court awarded the employer summary judgment and dismissed Marlene's retaliation claim. See Guevara v. Best Western Stevens Inn, Inc. (10th Cir. 2003).

Pretext

Once an employer provides a nonretaliatory reason for the adverse employment action, the employee will often argue that the employer's reason is pretextual. In other words, the employee will argue that the employer's asserted reason for the adverse action is false and offered only as a cover-up for an actual retaliatory intent. If an employer's explanation is demonstrated to be false, a factfinder may infer retaliation. The employee must prove that the employer's nonretaliatory reason is mere pretext (in other words, a lie). Often, this is done by providing evidence that the employee was treated differently than other similarly situated employees who did not participate in a protected activity.

Practical Example

Justin, a salesperson at Acme Sales, is terminated after objecting to sexual remarks about a female co-worker. Justin was part of a sales team and no other members of the team participated in the protected activity. The rest of the team had the same general duties and reported to the same supervisor. Every member of the sales team was challenged with meeting a sales target. None of the team members met the sales target except Justin, who was terminated. Justin can use this as evidence that his employer's proffered reasons for terminating him were pretextual.

Employees sometimes have difficulty in proving that other employees are similarly situated. For example, courts have held that probationary employees are not similarly situated to nonprobationary employees. Although the match does not have to be exact, an aggrieved employee does need to show a reasonably close resemblance of facts and circumstances. Generally, the employee needs to show that the duties and reporting structure of the other employees are the same. See Bogren v. Minnesota, (8th Cir. 2000); McKenna v. Weinberger, +729 F.2d 783 (D.C. Cir. 1984).

ADA Interference

Under the ADA, in addition to prohibiting retaliation, the ADA also prohibits interfering with the exercise or enjoyment of ADA rights. This is broader than the anti-retaliation provision and protects any individuals subject to coercion, threats, intimidation or interference with respect to ADA rights. The prohibition does not extend to all conduct that is intimidating, but only conduct

Examples of conduct prohibited under the ADA as interference including:

  • Coercing an individual to relinquish or forgo an accommodation which the individual is entitled to;
  • Intimidating an applicant from requesting an accommodation during the applicant process by indicating that requesting such an accommodation will result in the individual not being hired;
  • Threatening an employee with loss of employment if he does not voluntarily submit to a medical examination or other inquiry prohibited by the ADA;
  • Issuing a policy or requirement purporting to limit an employee's rights to invoke ADA protections (i.e. fixed leave policy stating that no exceptions will be made for any reason);
  • Interfering with an employees' right to file an ADA lawsuit against a former employer by threatening that a negative job reference will be provided;
  • Subjecting an employee to unwarranted discipline, demotion or other adverse treatment because the individual assisted a co-worker in requesting reasonable accommodation;
  • Pressuring an employee not to advise a coworker of his right to a reasonable accommodation;
  • Refusing to consider an accommodation unless an employee tries a medicine first; or
  • Threatening an employee that he will face adverse consequences if the employee requests an accommodation.

Managing and Preventing Retaliation

With retaliation claim on a continued rise over the last decade and even outnumbering claims of discrimination, an employer must take affirmative steps to manage and prevent retaliation claims.

Preventing retaliation or resolving claims internally is drastically less expensive and more preferable to legal action involving the EEOC. When cases settle, the EEOC often imposes costly compliance procedures in addition to a monetary award. For example, the EEOC has required that employers institute new policies, conduct extensive retraining on all personnel in a facility and submit multiple reports to the EEOC every time a retaliation claim is made to the employer - all as conditions of a single settlement. Other settlement-based compliance procedures include establishing a dedicated email account and phone line to receive complaints, distributing all policies in multiple languages, naming a designated individual to receive discrimination and retaliation complaints, providing annual Title VII training for all managers and supervisors, and reporting to the EEOC semi-annually on any instances where employees opposed employer practices.

In its most recent guidance, the EEOC has identified promising practices, training and other organizational changes that an employer may implement to minimize the likelihood of retaliation claims and help reduce the risk of violations. Adopting such practices doesn't shield the employer from liability but it may help reduce the employer's risk.

Written Employer Antiretaliation Policies

The EEOC advises that an employer should maintain a plain language anti- retaliation policy and provider practical guidance and user friendly examples of acceptable and unacceptable behavior.

The policy should include.

  • Examples of retaliation that managers may not otherwise realize are actionable including actions that would not be deemed discriminatory disparate treatment but may be viewed as actionable retaliation because such action would likely deter a reasonable perform from engaging in protected activity
  • Proactive steps for avoiding actual or perceived retaliation including practical guidance on interactions between managers and supervisors with those employees who have brought discrimination or harassment allegations
  • A reporting mechanism for employee concerns about retaliation, including access to a mechanism for informal resolution. The complaint procedure for retaliation claims needs to be flexible enough to account for the fact that courts have a broad definition of what constitutes a complaint. For example, the complaint procedure needs to account for a verbal complaint to a low-level manager as well as a written complaint to an HR manager. Ideally, the procedure will have broad intake methods that direct complaints to a central collection source within the HR department. It is important to specify to managers and supervisors that their job involves the management of retaliation issues.
  • A clear exception that retaliation can be subject to discipline up to and including termination.

An employer should make sure to review any policies that may deter employees from engaging in protected activity such as polices that would impose materially adverse actions for inquiring, discussing or disclosing wages.

Training

With regard to training, the EEOC advises that it is critical to

  • Train all mangers, supervisors and employees on the employer's written anti-retaliation policy.
  • Send a message from the top management that retaliation will not be tolerated, provide information on policies and procedures in several different forms and hold periodic refresher trainings.
  • Tailor training to address specific deficits in EEO knowledge and behavior that has arisen in a particular workplace. Make sure that employees are aware of what constitutes protected activity and provide examples on how to avoid problematic situations that have arisen or may arise.
  • Offer explicit instructions on alternative proactive EEO compliant ways these situations may have been handled. Provide scenarios and advice for ensuring that discipline and performance evaluations are motived and backed up by legitimate and non-discriminatory reasons.
  • Emphasize that those accused of EEO violations, particularly managers and supervisors should not act out of revenge or retribution.
  • Include training for management and HR staff on how to be responsive and proactive when employees raise concerns about potential EEO violations including basics such as asking for clarification and additional information to ensure that the question or concern raised is fully understood, consulting as needed for superiors to address the issues raised, and following up as soon as possible with the employee who raised the concern.
  • Do not limit training to those who work in offices. Provide EEO compliance and antiretaliation training for those working in a range of workplace settings, including for example employees and supervisors in low wage manufacturing and service industries, manual laborers and farm workers.
  • Consider overall efforts to encourage a respectful workplace, which may help curb retaliatory behavior.

Additional Advice and Individualized Support

As part of the employer's response and investigation after EEO allegations are made, the employer should provide information to all parties and witnesses regarding the employer's retaliation policy, how to report relation and how to avoid engaging in it.

Managers and supervisors who are alleged to have engaged in discrimination should be provided with special guidance on how to handle any personal feelings about the allegations when carrying out management duties or interactions in the workplace

An employer may want to provide:

  • Tips about avoiding actual or perceived retaliation;
  • Access to a resource individual for; advice and counsel on managing the situation; or
  • A standard debriefing with a manager, supervisor or witnesses after allegations are made so that such individuals can air any concerns or resentment about the situation and assist with strategies to avoid retaliation going forward.

Pendency of EEO Matter

Employers also may want to check in with employees, managers and witnesses while an EEO matter is pending to see if there are any concerns about potential or perceived retaliation. This can help resolve issues before they escalate and reassure employees and witnesses that the employer is committed to protecting against retaliation.

Review Employment Actions to Ensure EEO Compliance

Decision makers

An employer may see to have HR, an EEO specialist, other management official, in house counsel or other individual review proposed employment actions of consequence to ensure that they are based on legitimate and nondiscriminatory reasons. Reviewers should:

Require a decision maker to identify reasons for taking consequential actions which may be considered adverse and make sure that necessary documentation and evidence exists to support such decisions.

Examine performance assessments and evaluations to make sure that such documents are factually sound and free from unlawful bias and consistent with others.

Emphasize need for consistency to managers

Identify and implement any process changes that may be useful where relation is found to have occurred;

Review any available data or other resources to determine if there are particular organizational components with compliance deficiencies, identify causes and impiety responsive training, oversight or other training to address weaknesses identify

Remedies

There is a wide range of viable remedies in a retaliation case.

Temporary or Preliminary Relief

The EEOC has the authority to sue for temporary or preliminary relief while completing the process of processing a retaliation charge and in doing so, ask the court to stop retaliation before it occurs or continues if there is a substantial likelihood that the challenged action will constitute unlawful retaliation and the public or the employee will suffer irreparable harm. Irreparable harm may be the harms that accompanies loss of a job such as lost work and future prospects for work, emotional distress, depression and other related harm's

Compensatory and Punitive Damages

Money damages may be awarded to compensate victim and punish the employer for retaliation under Title VII, GINA, the ADEA, the ADA and the EPA. Punitive damages for pain and suffering are only available against private employers and not government/public employers. Compensatory and punitive damages may be capped in some cases.

Other Relief

Under other statutes enforced by the EEOC, an individual may be entitled to other equitable relief in the form of back pay, front pay or job reinstatement. The EEOC may also require an employer or change its policies or procedures; provide managerial training; report to the EEOC and other measure to prevent violations and promote future compliance.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

Organizational Exit > Involuntary Terminations > Retaliation

Discrimination Policy

Harassment Policy

EEO Policy

How to Prevent Discrimination in the Workplace

EEOC website - Retaliation

EEOC Compliance Manual, Section 8, Retaliation

EEOC Compliance Manual, Section 2, Threshold Issues