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.
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:
that plaintiff engaged in Protected activity,
that an Adverse employment
action has occurred, and
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:
direct evidence of retaliation (the proverbial smoking gun
evidence that the reason offered by the employer is a lie and
a cover up for retaliation; or
evidence that others who committed the same infraction, but
had not engaged in Protected Activity, did not suffer the same adverse action, or
evidence that the employer advanced inconsistent reasons to
justify the adverse employment action.
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.
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.
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
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.
But Illegal Opposition Tactics Are Not Protected: It is
settled that insubordinate or other disruptive opposition may not be considered
protected employee activity.
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.
An employee who requests a reasonable accommodation or
files for a benefit is also protected from employer retaliation.
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.
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.
On June 22, 2006 the United States Supreme
Court in Burlington Northern Railway Co v. White 2006 WL 1698953.
lowered the threshold for determining adverse impact.. The Supreme Court recognized that the
anti-retaliation provisions of Title VII ”protects an individual not from all
retaliation, but from retaliation that produces an injury or harm” and that the
standard of materiality or seriousness is
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.”’” 2006 WL 1698953, at *10 (citation
omitted and emphasis added)
The Supreme Court went on to state:
speak of material adversity because we believe it is
important to separate significant from trivial harms. Title VII, we have said,
does not set forth a ‘general civility code for the American Workplace’….. An employee’s decision to report
discriminatory behavior cannot
immunize that employee from those petty slights or minor annoyances that often
take place at work and that all employees experience. See 1.B Lindemann & P. Grossman, Employment Discrimination
Law 669 (3d ed. 1996) (noting that “courts have held that personality conflicts
at work that generate antipathy” and “’snubbing’ by supervisors and co-workers”
are not actionable under Section 704(a) . . . normally petty slights, minor
annoyances, and simple lack of good manners will not create … deterrence [ from
complaining to the EEOC, the Courts or the employer].
The only other examples
discussed by the Supreme Court in Burlington Northern were: (1) that a schedule change may make
little difference to many workers but may
matter enormously to a young mother of school age children; and (2) that
a refusal to invite an employee to lunch is normally a trivial non-actionable
petty slight, but excluding an employee from a weekly training lunch that
contributes significantly to the employee’s professional advancement might well
deter a reasonable employee from complaining about discrimination. Thus, there is some room left to
distinguish petty from significant adverse action as well as some room to argue
that the change did not matter to the particular plaintiff on a subjective
But the clear import and
impact of the Burlington Northern case is that many more retaliation
cases will go to juries to decide whether the alleged adverse action would have deterred a reasonable
employee from protected activity.
remains to be seen whether Burlington Northern will overturn the many
prior cases which distinguished the consequential from the trivial, including
the following: e.g., Haywood,
323 F.3d 524 (a one-month delay in an employee’s transfer did not amount to an
adverse employment action) Foley v. University of Houston Sys., 355 F.3d
333 (5th Cir. 2003) (University professors wer alleged to have schemed to
remove a fellow professor from the chairmanship of a department and to
undermine programs with which she was associated. was not held to constitute adverse employment action), Jacob-Mua
v. Veneman, 289 F.3d 517 (8th Cir. 2002) (no adverse employment action
where an employee’s position was marked for elimination in the ordinary course
of business, he was offered a substitute position, and he did not suffer a loss
in grade or pay when transferred to another state); Stone v. Board of
Directors of Tenn. Valley Auth., No. 00-6328, 2002 WL 1001031 (6th Cir. May
15, 2002),(requirement to take a fitness for duty test was not adverse
As recently as January 31, 2006, the Third
Circuit, in a case of first impression, ruled that a retaliation claim
predicated upon a hostile work environment is cognizable under Title VII. In Jensen v. Potter, 435 F.3d
444 (3d Cir. 2006), Judge Samuel A. Alito Jr., writing for a unanimous panel,
noted that since Title VII’s general discrimination provision applies to
hostile work environment claims, there is no reason to conclude that such
claims would not be covered under Title VII’s retaliation provision. Id. In addition, the First, Ninth and Tenth Circuits have all
held that the creation of a hostile work environment can be retaliatory adverse
employment action. See, e.g.,
Noviello v. City of Boston, 398 F.3d 76, 95 (1st Cir. 2005); Che v.
Massachusetts Bay Transp. Auth., 342 F.3d 31, 40 (1st Cir. 2003); Ray v.
Henderson, 217 F.3d 1234 (9th Cir. 2000); Gunnell v. Utah Valley State
Coll., 152 F.3d 1253 (10th Cir. 1998).
On the other hand, recent cases involving
“shunning” by coworkers, which the Courts have found not to constitute
actionable adverse employment action, still seem to be viable precedent. EEOC v. Journal Cmty. Group, No.
04-C-0326, 2006 WL 801024 (E.D. Wis. Mar. 28, 2006); Brown v. Colgate-Palmolive
Co., No. 1:04-CV-0782-DFH-WTL, 2006 WL 517684 (S.D. Ind. Mar. 2, 2006); Mlynczak
v. Bodman, 442 F.3d 1050 (7th Cir. 2006). But if the employer refuses to act after there is a
complaint of coworker adverse employment action, the employer may still be
found responsible. See Pellier
v. British Airways, Plc, No. 02-CV-4195, 2006 WL 132073 (E.D.N.Y. Jan. 17,
What questions remain for the courts (rather
than the juries) to decide? What
about the effect of negative evaluations of employee performance? Would a reduction this year from
outstanding to above average or a drop to average be actionable? If performance
slips, is the plaintiff nevertheless protected from honest evaluation? Will the judgments of supervisors and
Human Resource Professionals be second guessed by lay jurors? Is Brown v. Snow, 440 F.3d 1259
(11th Cir. 2006) holding that such evaluations are not adverse action still
Will a selection of another employee or
applicant for a job or promotion
be submitted to a jury? Must
employers act at their peril in not promoting the protester?
When a protester asks to have their schedule changed, or for
a day off, will rejection be looked at under a jury’s microscope?
Will warnings about job performance, even if
warranted, now be considered adverse employment action? Will Powell v. Yellow Book, USA Inc.,
445 F.3d 1074 (8th Cir. 2006 ); Tapia v. City of Albuquerque, No.
05-2028, 170 Fed. Appx. 529 (10th Cir. Feb. 10, 2006); Linson v Lockheed
Martin Energy Sys., Inc, No. 3:06-CV-39, 2006 WL 180611 (E.D. Tenn. June
29, 2006), all refusing to hold job evaluations as adverse employment action,
be overturned? Will the jury or
judge decide whether the warning is proper?
Employers now act at their peril in dealing with members of
the protected class who ask for employment advantages. And it is more important
than ever to be sure those persons who did not engage in protected activity not
be treated better than those protected from retaliation, since disparate
treatment will surely influence the jury in its deliberations.
CAUSAL CONNECTION WITH THE PROTECTED ACTIVITY (“C”)
Under many statutory and common law retaliation causes of
action, plaintiff need not prove that the protected activity was the sole
motivating factor in the adverse employment action. Under Title VII of the Civil Rights Act and many similar
statutes, the jury will be charged that they may find liability if the
protected activity was “a motivating factor” in the decision to take adverse
employment action. (In some cases,
the employer may nevertheless avoid reinstatement and backpay liability if it
can satisfy its burden of proof that it would have discharged the employee for
good cause even if there had not been protected activity.)
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.
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 alleged retaliatory act
to occur are shown to have been aware of the specific activity.” Hernandez v. Data Sys. Int’l, Inc.,
266 F.Supp. 2d 1285, 1307 (D. Kan. 2003) (internal quotations and citations
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
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.
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.
Virtually every employment-related statute contains an
add-on cause of action for retaliation.
Protects participants who request a benefit or actions
which interfere with the attainment of a right under a pension or welfare plan.
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:
Prohibits retaliation against certain whistleblowers in
publicly traded corporations;
Provides a mechanism for enforcing civil SOX retaliation
violations before the Occupational Safety and Health Administration;
Imposes new criminal sanctions for anyone who corruptly:
knowingly and intentionally retaliates against whistleblowers
providing governmental agencies with “any truthful information relating to the
commission of any federal offense”;
destroys or conceals records, documents or other objects with
the intent to impair the object’s integrity or availability for use in an
official proceeding; or
otherwise obstructs, influences or impedes any official
proceeding or attempts to do so.
SOX provides civil whistleblower
protection with respect mail fraud and swindles (18 U.S.C. § 1343) and
bank fraud (18 U.S.C. § 1344), as well as violations of SEC rules or
regulations or any provision of federal law relating to fraud against
Both internal and external whistleblowing is
protected. Whistleblowers are
protected if they provided information in-house to a person with supervisory
authority over the employee (or such other person working for the employer who
has authority to investigate, discover or terminate misconduct). And they are protected for dealing with
government agencies. Protection is
available for filing, causing to be filed, testifying or otherwise participating
in a proceeding regarding fraud, etc. without any reasonableness requirement.
But whistleblowing employees are only protected if he/she
has a reasonable belief that there has been a prohibited violation.
Whistleblowers who have been retaliated against can only
recover under SOX reinstatement, back pay, interest and litigation costs and
there is a short 90-day limitations period for filing a complaint of SOX
violation with the Occupational Safety and Health Administration.
There are two sources of potential retaliation protection under
the doctrine under many state’s common law that individuals
are protected against adverse employment action for a reason against “public
Common law doctrines vary state by state from the broad
protections in California and New Jersey to those states, like New York, which
refuses to recognize such protections under common law notions, but has passed
several very specific statutes which provide similar protection to inter
alia whistleblowers but only on matters of
public health or safety.
Among the activities often protected from retaliation by
state common law or legislation are:
serving on a jury
filing workers’ compensation claims
whistleblowing about specified violations
objecting to illegal activities
engaging in after hours legal recreational activities (a
statute often lobbied through by the tobacco industry)
political activity, or
as part of employment discrimination statutes similar to
The list of state common law and statutory protections is
simply too long to exhaust here.
Suffice it to say that each jurisdiction must be carefully researched
when considering or defending a lawsuit prohibiting adverse employment action
or when advising clients on compliance.
Here are some steps to be considered in planning to avoid
Written Anti-Retaliation Rules
Clear Work Rules signed for by all employees (to provide evidence
to support disciplinary action)
Grievance Procedure (with appropriate time limits - -
otherwise claim deemed waived so failure to exhaust internal procedures may be
a defense) so employees have a venue to settle their claims in-house
Step 1: Oral with
supervisor or HR
Step 2: Written with
next highest management group
Writing Required to state:
What is the problem?
When did you present it orally to supervisor or HR?
What response did you get?
Why do you disagree?
What do you think should be done?
Step 3: Final
In-house Resolution (consider a committee with some management and some rank
and file participating)
Step 4: Mediation
Step 5: Final and Binding Arbitration
Prompt and Fair Investigation
Supervisory Training in EEO and Retaliation Prevention and Anger Management
Those who refuse to act because of claimed illegality
Employees requesting accommodations to a disability
Be sure you understand
The reason supporting the Adverse Employment Action
Whether it will seem fair to a judge or jury
Whether the punishment fits the crime
What the personnel history of the miscreants and comparators
look like - - first time offender or recidivist
How you treated other miscreants and comparators who were not
protected potential retaliation plaintiffs.
Whether the miscreant receive fair warning (enough rope)
the adverse employment action.
Review the Paper Trail
The potential plaintiff’s personnel file - - unblemished
record or repeat offender
The personnel files of those similarly situated who are not
potential retaliation plaintiffs
The records of progressive discipline of the plaintiff.
The records of the grievance procedure on the issue
Involve HR and Counsel before the ax falls.
Control the emotions of supervisors who have been accused - -
Introduce a level head, if necessary
Give the potential retaliatees enough rope - - Have them write
their complaints and rebut or correct them
Nit pick their performance
Transfer them to worse jobs
Unfairly deny them benefits.
Downgrade their evaluations.
Give them bad references when they leave and seek another job.
So put on your
neutral hat and ask your spouse, significant other, in laws or children what
they would do on a jury.
Did the employer and the alleged perpetrator know of the
protected activity when they took adverse action?
Did the employer begin the progressive disciplinary action
which led up to the adverse employment action before the protected activity was
Did the alleged victim unreasonably fail to avail themselves
of the employer’s fair grievance and arbitration system which objectively
offered them a means of redressing the adverse employment action?
Did the employer exercise reasonable care to prevent and
promptly correct retaliatory harassment?
Did the alleged victim raise the charge of retaliation timely?
SOX has a 90-day statute of limitations
Title VII and ADA have a 300-day period to file a charge (if
there is no state discrimination
law - - if not, 180 days)
State and other limitations periods vary - - so check the
particular law and jurisdiction
Did the alleged victim fail to submit the complaint timely
under the employer’s grievance and arbitration system?
Should the matter be taken away from a jury in Court because
the employer has a valid arbitration requirement?
Did the charging party specify retaliation in the EEOC charge
upon which the lawsuit was based?
The time and defense costs and the potential for runaway
jury verdicts, makes retaliation lawsuits a fertile field for extortionate
settlement demands. If defense can
cost tens or hundreds of thousands, plaintiffs and their attorneys are
encouraged to “take a shot” and offer a “nuisance” settlement figure of a large
fraction of the defense cost as a bottom line savings to the employer. For this reason alone, there are
inherent savings in training supervisors, managers and HR administrators in
dealing effectively and fairly with those protected from retaliation.