The Equal Employment Opportunity Commission (“EEOC”) recently reported retaliation charges have doubled in the past decades and constitute 25 percent of all charges before the EEOC.

Employers who face retaliation lawsuits can be found liable for reinstatement, backpay, front pay, damages for pain and suffering, punitive damages and paying the plaintiff’s legal fees depending on the particular anti-retaliation law involved.

When managers are accused of violating the law, they usually get mad at their accuser.  They can be even more irate when the charge is a trumped-up lie.  It is especially difficult for supervisors who still have to direct, deal with and, if necessary, discipline their accuser.  But they must be restrained from overreacting and getting even.  Even if they are not guilty of the legal violation, if they get even, they may just lose a retaliation lawsuit. 

In one case, a woman pilot complained of sex harassment and that she had been fired for complaining.  The judge dismissed the sex harassment charge, but the jury awarded $3.5 million in punitive damages for retaliation because she had complained.

This article will outline the elements of the retaliation cause of action, cite the statutes and laws involved and offer practical advice on avoiding retaliation lawsuits.

I.          ELEMENTS OF A RETALIATION CAUSE OF ACTION

A.     “PAC”- Protected Protests, Adverse Action and Causal Connection 

The issue in all suits contesting adverse employment actions is, “Why” did the employer do it?  “Why” is an operation of an actor’s mind and alleged perpetrators invariably deny invidious discrimination.  So, plaintiffs usually can offer no direct testimony to prove a discriminatory motivation.  Because juries want to understand the employer’s motive, the best defense is always a “good” and “fair” reason, without which juries may decide that the ax fell for the wrong reason.  It may not have been because of race or sex, but it might be because the person complained testified, sided with a victim or asked for their statutory rights.

Since the ultimate question in retaliation cases is the operation of the mind of the actor, the courts have approached this inquiry in much the same way as in discrimination cases - - finding that a claim of retaliation can be proven either by offering direct evidence of retaliation or by offering circumstantial evidence under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (“McDonnell Douglas”) burden shifting model.

Plaintiffs do not get to the jury unless they make out a “prima facie case” of retaliation:

1)     that plaintiff engaged in Protected activity,

2)     that an Adverse employment action has occurred, and

3)     that there was a Causal link between the protected activity and

        the adverse employment action.

The employer then has a burden to articulate a legitimate, non-discriminatory reason for the adverse employment action.

Then the burden shifts back to the employee to prove, if he/she can, that the stated reason was a pretext for retaliation.  The plaintiff can often get to a jury (and juries like to be fair) if there is:

1)     direct evidence of retaliation (the proverbial smoking gun admission); or

2)      evidence that the reason offered by the employer is a lie and a cover

          up for retaliation; or

3)       evidence that others who committed the same infraction, but had not

           engaged in Protected Activity, did not suffer the same adverse action, or

4)       evidence that the employer advanced inconsistent reasons to justify

           the adverse employment action.

1.          PROTECTED ACTIVITY (“P”)

An employer is prohibited from retaliating against an employee who takes part in protected activity.  Protected activity can be:  (a) “Opposition” to illegal activity, including prohibited discrimination; (b) “Participation” (in a proceeding concerning allegations of illegal actions); (c) Whistleblowing; or (d) claiming an employment-related benefit. 

An employee engages in protected activity if he/she:  (1) Opposed illegal activity, such as legally protesting or refusing to participate in a discriminatory employment or illegal practice in good faith; (2) Made a charge; or (3) Participated in an investigation, proceeding or hearing; or (4) Exercised, claimed or asserted a protected right, such as requesting a reasonable accommodation under the Americans with Disabilities Act of 1990 (“ADA”) or filing for a benefit under Workers’ Compensation or the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”). 

a.          Opposition to Illegal Acts

(1)  Protests and Whistleblowing:  Protected activity may come in the form of protests.  Many laws protect expressions of views, whether through established grievance procedures or alternative forms of protest, balancing the employer’s business interest in preventing those expressions against the overriding interests embodied in the statute.  And public employers may be faced with challenges based upon constitutional free speech protections.

(2)  Refusal to Participate in Illegal or Discriminatory Employment Practices:  Protected opposition may come in the form of a refusal to participate in discriminatory employment practices or other illegal employer actions. 

(3)  Good Faith or Reasonableness:  An employee’s opposition is protected even if the employer violates no law if:  (a) the employee reasonably believed that there is a violation; and (b) the belief is held in good faith, even if mistaken.  In other words, to be protected from retaliation, the employee must show his/her belief is objectively reasonable and held with subjective good faith.

(4)  But Illegal Opposition Tactics Are Not Protected:  It is settled that insubordinate or other disruptive opposition may not be considered protected employee activity. 

b.         Participation in a Proceeding

An employer cannot retaliate against an employee for filing a charge or suit, for testifying, or for assisting in an investigation, proceeding or hearing. 

However, it is important to refer to the exact statutory language or case law to determine what Participation is “Protected” because there are differences between certain statutory protections. For example, while most federal antidiscrimination laws protect protesters who complain internally, the Fair Labor Standards Act has been ruled to protect only participation in Court or Department of Labor proceedings.

In addition, many statutes protect those who assist or aid others in seeking to vindicate their statutory rights, such as cooperating or testifying in administrative proceedings.

c.        Exercising, Claiming or Asserting a Protected Right

An employee who requests a reasonable accommodation or files for a benefit is also protected from employer retaliation.

(1)  Requesting Reasonable Accommodation:  An employee may be granted protection from retaliation under the Americans with Disabilities Act if they requested a reasonable accommodation, even if they do not file a formal charge and they are protected from adverse employment action for their request, even if they are not entitled to the accommodation.

(2)  Filing for a Benefit:  The Employee Retirement Income Security Act (“ERISA”) prohibits retaliation for seeking a benefit or exercising a right under an employee benefit plan.  29 U.S.C. § 1140 (“ERISA § 510”).  In the context of Workers’ Compensation, most state laws prohibit retaliation for claiming a benefit.

2.          ADVERSE EMPLOYMENT ACTION (“A”)

There is disagreement between the circuits as to what type of employment action is sufficient or necessary to satisfy the second element of PAC (adverse employment action).  All the Courts recognize the difference between minor inconveniences, which are not actionable retaliation, and serious detriments (similar to the “tangible employment action” Supreme Court posited in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) in allowing employers a defense to harassment charges where they have an effective complaint procedure in place.) 

As the Seventh Circuit put it recently in Griffin v. Potter,       F.3d      ; 2004 WL 193578, at *4 (7th Cir. Feb. 3, 2004), “an adverse employment action must be materially adverse, not merely an inconvenience or a change in job responsibilities.” 

Some Courts have held the following not to be actionable adverse employment actions:  (a) harder work assignments; (b) lateral transfer without loss of pay or benefits, even with an increased commute); (c) additional job responsibilities; (d) altered work hours, (e) negative performance evaluations, (f) unfair reprimands; (g) oral and written reprimands; (h) refusal of preferred vacation schedule; (i) increased travel time; or (k) as one Court put it, “[R]equiring an employee to develop new skills is not the kind of adversity that can support a prima facie case of retaliation, especially in a rapidly evolving field such as computer programming.” 

But the federal Appeals Courts are split between those circuits that define an adverse employment action to be an “ultimate employment decision” such as hiring, granting leave, discharge, promotion and compensation and those Courts that recognize less onerous actions as adverse.  Indeed, one Court has held that the creation of a hostile work environment can be retaliatory adverse employment action.   Different Federal and State Courts look to different factors in determining whether an employer’s action rises to the level of legally sufficient adverse employment action either to support a prima facie case or an adverse employer verdict.  So it is vital that employer’s HR people and counsel understand the law applicable in their jurisdiction.

It is clear that where the issue boils down to the difference between jobs, the Court will make a detailed, factual analysis of the significance of the differences between jobs. 

CAUSAL CONNECTION WITH THE PROTECTED ACTIVITY (“C”)

Management and their representatives create an appreciable risk that their conduct will be found unlawful if they make overt statements or create documents (or e-mail) that indicate that they intend to, or have fired, demoted or taken any perceivably adverse action against employees who engage in protected activity.  But few managers baldly state they are retaliating.  So the courts have indicated that proof of causation or the third element of PAC, can be established either indirectly by means of circumstantial evidence, for example, by showing that the protected activity was soon followed by adverse treatment in employment, or directly by evidence of retaliatory animus.  Because such direct proof is rare, however, much of the discussion of causation in the case law is directed at circumstantial proof, such as temporal proximity, disparate treatment, inconsistent management actions or asserting inconsistent reasons for the adverse employment action. 

a.          Temporal Proximity

Even though the Mafia aphorism that “revenge is a dish best eaten cold” may be true, a plaintiff can satisfy the third requirement of PAC (causation) by showing proximity in time between the protected activity and the adverse employment action and many courts dismiss retaliation claims for actions months and years after the protected activity.  Absent other evidence, however, the courts will only infer a causal connection based on very close proximity to the adverse employment action.  Therefore, the United States Supreme Court, (in a case summarily reversing a Ninth Circuit decision without further briefing or oral argument) has upheld summary judgment against an employee retaliation claim when the employer either did not know of the EEOC action just before taking adverse employment action or knew about the filing of the charge 20 months earlier.  See Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001).  There is no clear-cut answer, however, as to what constitutes sufficient proximity in time. 

The Supreme Court, in Breeden, has stated definitively, however, that 20 months will be considered too long to support a temporal causality finding as a matter of law.  The following periods have been held by many Courts to be too long:  17 months and one year.  Most Courts will find that retaliation for protected activity known to the employer one year or more previously will not pass the temporal proximity text 

On the other hand, knee jerk reactions after only several days or a few months have been found proximate enough to support a prima facie case or finding of retaliation.

But the time is measured from when the alleged perpetrator found out about the protected activity as one Court said:  “the proximity … is meaningless unless those who caused the retaliatory act to occur are shown to have been aware of the specific activity.” 

b.         Disparate Treatment

Most employers seek to defend retaliation charges by asserting that they took the adverse employment action for “good cause.”  When, however, the plaintiff can show that others who did the same thing but did not engage in protected activity were treated less harshly, the case will usually go to the jury.

Another Achilles heel for employers is giving inconsistent reasons for the adverse action so a Court will leave the liability question to the jury.

Thus, circumstantial evidence, which often could involve temporal proximity, disparate treatment, or employer inconsistency; as well as direct evidence which could involve expressed animus, may all be considered in determining whether a “C” or causal connection exists between the “P” or protected activity of the employee, and the prohibited “A” or adverse employment action of the employer.

c.         Plaintiff Must Prove Employer
            Knew Of Protected Activity

There are any number of cases which dismiss retaliation claims where the employee does not establish that the actor who took adverse employment action knew of the protected activity.

II.     Statutory and common law definitions of protected activity

Virtually every employment-related statute contains an add-on cause of action for retaliation. 

A.        Federal Anti-retaliation Legislation

1.         Anti-discrimination Laws

a.     Title VII of the Civil Rights Act and The Age Discrimination

        in Employment Act

b.     The Americans with Disabilities Act

2.         The Employee Retirement Income Security Act

Protects participants who request a benefit or actions which interfere with the attainment of a right under a pension or welfare plan.

3.         The Fair Labor Standards Act

4.         The Family and Medical Leave Act

5.         The Longshoremen and Harbor Workers Act

6.         The Migrant and Seasonal Workers Act

7.         The Occupational Safety and Health Act

8.         The Railroad Employees Liability Act

9.         The “Federal Aviation Act of 1958”

10.       Labor Management Relations Acts

11.       The National Labor Relations Act

12.       The Railway Labor Act

B.         The Sarbanes-Oxley Act

The Corporate Criminal and Fraud Accountability Act (“SOX”), was passed lickedity-split following the Enron debacle with virtually no statutory history.  SOX has the following key provisions: