Retaliation in Discrimination Cases
Eliminating Fear of Reprisal
By Lisa A. Baker, J.D.
Employee: Hi boss, I understand you wanted to see me.
Manager: Yes, thanks for coming in. We need to talk about some things that came up in your performance review.
Employee: I know this hasn’t been the best year, but I’ve had quite a bit on my mind.
Manager: I understand that, and I know the fact that you didn’t get that promotion last year hit you hard, but I need a commitment from you. I think you’ve been too focused on your case you filed claiming you were discriminated against, and I think what you’ve done by pursuing this leads me to question whether you can be a team player. I just don’t think I can give you a satisfactory rating.
Employee: You know that will keep me from my pay increase.
To the uninformed manager, this opening dialogue might appear a reasonable and effective way to address concerns and counsel an employee. However, in light of recent U.S. Supreme Court rulings addressing retaliation against employees for their involvement in discrimination actions, this conversation is fraught with potential legal liability. This article explores what constitutes retaliation within the context of the federal antidiscrimination statutes offering protection to employees at all levels of the government, as well as the private sector. In addition, the article discusses recent Supreme Court rulings expansively interpreting these provisions.
The federal statutes that prohibit discrimination on the basis of race, color, sex, national origin, age, disability, and genetic information, as well as gender-based wage differences, also prohibit retaliation against individuals involved in a claim of discrimination. According to statistics maintained by the Equal Employment Opportunity Commission (EEOC), the number of retaliation claims have increased dramatically during the past decade. In 1998, retaliation claims constituted 24 percent of the claims of discrimination filed under all of the antidiscrimination statutes. In 2008, this number rose to over 34 percent. Claims of unlawful retaliation under Title VII of the Civil Rights Act alone constituted over 30 percent of the total number of claims of retaliation.1
Generally, individuals alleging retaliation must establish that they are covered individuals by demonstrating that they engaged in activity protected by a discrimination statute and the employer took an adverse action against them on account of the protected activity. Finally, plaintiffs must be able to show causal connection between the protected activity and the adverse employment.
COVERED INDIVIDUALS ENGAGED IN PROTECTED ACTIVITY
The provisions against retaliation within the antidiscrimination statutes protect covered individuals who engage in a protected activity. A covered individual includes an employee or applicant for employment who has opposed any discriminatory practice by the employer or has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing.”2 Included as well are former employees.3 For example, making disparaging comments and providing an unsubstantiated negative recommendation to a former employee’s prospective employer because of the former employee’s past claim of discrimination could be actionable as retaliation despite the lack of a current employment relationship. The activities covered by the employment-related antiretaliation protections include opposing a discriminatory practice (the opposition clause) and filing a charge of discrimination or testifying, assisting, or otherwise participating in an investigation, proceeding, or hearing addressing a claim of discrimination (the participation clause).4
Special Agent Baker is chief of the Legal Instruction Unit at the FBI Academy.
Opposition to a discriminatory employment practice occurs when employees, either directly or indirectly, communicate to their employer a reasonable, good-faith belief that the employer has engaged in unlawful employment discrimination.5 Moore v. City of Philadelphia, comments made to a commanding officer by police officers regarding inappropriate and offensive racial comments by their supervisor constituted opposition to discriminatory practices.6 For example, in Critically, an employee need not have filed a formal complaint of discrimination with the employer to be deemed to have opposed unlawful discrimination. Merely voicing concerns about discrimination to a supervisor or other representative of management will suffice.
The scope of the protection afforded under the opposition clause was addressed by the Supreme Court in Crawford v. Metropolitan Government of Nashville and Davidson County.7 In this case, Vicky Crawford sued her former employer, alleging that she was fired after she was interviewed as part of an internal investigation into allegations of sexual harassment by a coworker. In response to the questions, she indicated that she observed several instances of sexually harassing behavior. Soon after the internal investigation was completed, Metro fired Crawford, as well as the two other accusers. Metro asserted that Crawford’s termination was for embezzlement. Crawford sued, claiming unlawful retaliation.
The lower courts ruled in favor of the employer, dismissing the lawsuit on the grounds that Crawford did not satisfy the opposition clause because she had not herself initiated a complaint to management about discrimination or harassment but simply answered questions as part of an internal investigation.8 The Supreme Court reversed, construing the opposition clause to include more than initiating a formal complaint. The court stated,
There is, then, no reason to doubt that a person can “oppose” by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.9
The Supreme Court commented that this expansive interpretation of the opposition clause is critical to give full meaning to the protections against retaliation. A contrary result could encourage employees to remain silent about discriminatory practices against themselves or against others. The court stated, “This is no imaginary horrible given the documented indications that ‘[f]ear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.’”10
The antiretaliation provisions prohibit discrimination against an individual on account of the individual’s making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, hearing, or litigation under the anti-discrimination statutes.11 In addition, the EEOC and a minority of federal appellate courts prohibit retaliation against someone who is closely related to or associated with the person claiming discrimination.12 For example, a husband and wife are employed by the same police department. The wife files a claim asserting she was unlawfully discriminated against on account of her gender. Her husband’s supervisor decides to make life more difficult for the husband because of the lawsuit. The supervisor ostracizes him from key team-building exercises and places a caricature of him on the squad bulletin board. This would constitute unlawful retaliation.
In addition, an individual is protected from retaliation for participation in a claim of discrimination even if this claim involved another employer. For example, an applicant for employment is denied employment because the would-be employer learns that she brought a claim against her former employer for sexual harassment. The would-be employer decides not to hire her out of a concern that she could be disruptive within the workplace. The applicant could prevail on a claim of retaliation by the would-be employer if she can demonstrate her prior actions were a significant factor in the decision not to hire her.13
Underlying Claim of Discrimination
Many courts have limited the reach of the antiretaliatory protections by requiring the person claiming retaliation for opposing, and in some cases participating, in a proceeding against the employer to hold an objectively reasonable, good-faith belief that the employer practice or conduct at issue constitutes unlawful discrimination.14 For example, in a case involving a claim of sexual harassment and retaliation, the court dismissed both causes of action after concluding no reasonably objective person would have believed that a single, isolated crude comment would constitute sexual harassment. Therefore, the employee did not engage in a protected activity for purposes of a claim of retaliation.15 However, this also means that a case of retaliation can be established even if the underlying claim of discrimination is not substantiated. As stated by one court, an individual claiming retaliation “‘need not prove the merits of the underlying discrimination complaint’ in order to seek redress”16 as long as the belief is objectively reasonable.
Individuals claiming unlawful retaliation must demonstrate that the employer took an ad- verse action against them. In the case of Burlington Northern and Santa Fe Railway Company v. White17 the Supreme Court broadened what can be considered an adverse action for purposes of a claim of retaliation. Prior to this ruling, a split of opinion existed as to what would amount to an adverse action in a claim of retaliation. Some courts took a narrow approach, holding that an ultimate employment decision, such as hiring or firing, had to be impacted.18 Other courts applied the same standard in a claim of retaliation as that applied in substantive discrimination cases, meaning that the action must have impacted the terms, conditions, or benefits of employment.19 Still other courts generously interpreted the retaliation protections, holding that the definition of adverse action was more expansive than that in the substantive discrimination case.20 The Supreme Court ultimately agreed with the more expansive interpretation, making it easier for individuals to argue that they have been negatively impacted by retaliatory actions.
In Burlington Northern, Sheila White complained to her employer that she was sexually harassed by her supervisor. The supervisor was disciplined, and she was removed from her normal assignment and reassigned to a more arduous position with less desirable duties. She sued, claiming that her reassignment was in retaliation for her claim of sexual harassment. Subsequently, there was a dispute at work and White was suspended indefinitely without pay for insubordination. White challenged her suspension and won after her employer concluded that she was not insubordinate and awarded her back pay. White added an additional charge of retaliation for her suspension.
A jury returned a verdict in White’s favor, finding that she had been retaliated against. On appeal, the court ruled against her, concluding that she had not suffered an adverse action.21 This was appealed to the full panel of the Sixth Circuit Court of Appeals, which reinstated the jury verdict.22 The justices, however, did not agree on the appropriate standard to apply in defining what constituted an adverse employment action in a retaliation case. The Supreme Court agreed to hear the case to resolve this issue.
The Supreme Court held that an expansive interpretation of the definition of adverse action is needed in retaliation claims to safeguard the intent of antiretaliation provisions, which is to prohibit employers from engaging in conduct that could deter individuals from complaining of discrimination. The Supreme Court concluded, “[t]he scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harms.”23 In other words, “an employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.”24 A more narrow interpretation of adverse action “would not deter the many forms that effective retaliation can take.”25
The Supreme Court’s definition of adverse action is not without limits. A decision to report discrimination does not “immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.”26 To constitute an adverse action, the plaintiff must be able to show that a reasonable employee would have found the action materially adverse, meaning it would dissuade a reasonable employee from pursuing a claim of discrimination.27 Key to finding material adversity is determining whether the employer’s action would deter someone from pursuing a claim of discrimination, and “normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence.”28 Determining whether an action is materially adverse requires an assessment of its impact within the facts and circumstances of the specific case at issue. For example, the Supreme Court noted that a sudden change in work schedule might not be materially adverse to some but may be significant to a single parent with critical day care needs.29
Applying these principles to the case at hand, the court concluded that there was sufficient evidence to support the jury’s verdict in favor of the plaintiff. The court noted that a reassignment, such as that which occurred in the White case, could be materially adverse, even though she was reassigned to duties within her job description where the reassignment led to her performing more strenuous and less attractive duties.30 In addition, the court rejected Burlington’s argument that the suspension without pay was insignificant given she was reinstated and awarded back pay. The court concluded that a reasonable employee may choose avoiding the economic hardship and emotional turmoil of a suspension over pursing a claim of discrimination even if the employee is later made whole.31
While the Supreme Court made it easier to establish that an adverse action was taken, what remains for the plaintiff is to demonstrate that the involvement in the protected activity was a substantial or motivating factor in the adverse action. In other words, a casual connection must be established.
To establish a claim of retaliation, the plaintiff must establish a link between the protected activity and the adverse action. In other words, there must be a retaliatory motive as opposed to legitimate, nonretaliatory reasons for the action. For example, the negative reference for future employment was driven not by the discrimination claim from the former employee but, rather, because of a history of poor performance. To establish this casual connection, plaintiffs must either have direct proof of the retaliatory motive or prove it through circumstantial evidence.
Direct evidence of the retaliatory motive consists of some type of written or oral statement made by the offending party that provides an indication that the adverse action was undertaken on account of the plaintiff’s involvement in the protected activity. For example, in Moore v. City of Philadelphia,32 white police officers complained to management about how African-American officers were being treated by commanding officers. The white officers later asserted that they were retaliated against for speaking out regarding this discriminatory conduct. The court noted direct evidence of the retaliatory motive based on the commanding officer’s comment to the complaining officer that “if he made an EEOC complaint, he would make his (the complaining officer’s) life a living nightmare.”33
Indirect or Circumstantial Evidence
In most cases, direct evidence of the retaliatory motive is lacking. The most common way to establish the retaliatory motive is through circumstantial evidence. In such cases, the plaintiff must establish that he or she engaged in a protected activity and that this was a motivating factor in the adverse action, leading to treatment that was harsher than similarly situated employees who did not engage in the protected activity.34 The burden then shifts to the employer to articulate legitimate, nonretaliatory reasons for the adverse action.35 For example, the poor performance review was the result of actual performance-related problems and not due to involvement in a claim of discrimination. If the employee fails to do this or the plaintiff establishes that the purported reason offered by the employer is pretextual, the plaintiff will prevail.36 In some cases, a plaintiff may be able to demonstrate that the reason advanced by the employer is pretextual by pointing to direct evidence of its lack of legitimacy. A factor often raised and considered in such cases is the timing of the protected activity relative to the adverse action. In these cases, plaintiffs assert that the closer in time between the protected activity and the adverse action, the more likely the adverse action was retaliatory.37 However, more than just closeness in time is typically needed. For example, as stated by one court, “[i]nsubordinate employees may not insulate themselves from discipline by announcing an intention to claim discrimination just before the employer takes action.”38
Plaintiffs also may attempt to establish the pretextual nature of the purported reason for the adverse action indirectly. Typically, this is established by showing that the employer treated similarly situated employees differently than the plaintiff. One way this may be established is if the employer treated the employee differently after complaining of the discriminatory conduct by placing the employee’s work performance under greater scrutiny or “keeping a book” on the employee.39
The antiretaliation provisions within discrimination statutes are designed to ensure that individuals are not deterred from making, or otherwise being involved in, a claim of discrimination. To this end, the Supreme Court recently reiterated that such protections should be broadly construed, reaching conduct that a substantive claim of discrimination does not reach. As a result, employers should take proactive steps to train managers and supervisors to ensure that they understand the concept of retaliation and how to keep their actions and decisions from falling within its reach. Emphasis should be on treating the employee involved in a discrimination complaint the same as other employees. Any action taken against such employees for legitimate, non-retaliatory motives should be supported by adequate and appropriate documentation.
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.
1 U.S. Equal Employment Opportunity Commission, “Charge Statistics FY 1997 through FY 2008”; http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (last visited November 30, 2009).
2 42 U.S.C. § 2000e-3(a). See also Age Discrimination Act at 29 U.S.C. § 623(d); Fair Labor Standards Act at 29 U.S.C. § 215(a)(3); Americans with Disabilities Act (ADA) at 42 U.S.C. § 12203(a). In addition, the antiretaliation provision in the ADA provides for broader protection by making it unlawful “to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.” Thus, the ADA prohibits not only disability-based claims of discrimination in employment practices but also disability-based discrimination in other contexts, such as discrimination in state and local government services, public accommodations, and commercial and telecommunication facilities.
3 Robinson v. Shell Oil Co., 519 U.S. 337 (1997). See also Rochon v. Gonzales, 438 F.3d 1211 (D.C.Cir. 2006).
4 See EEOC Compl.Man at § 8-I(A).
5 See Id. at § 8-II(B).
6 Moore v. City of Philadelphia, 461 F.3d 331 (3rd Cir. 2006). See also Moyo v. Gomez, 40 F.3d 982 (9th Cir. 1995) (refusing to obey an order that discriminated against African-American inmates constituted opposition).
7 129 S.Ct. 846 (2009).
8 Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 2005 WL 6011557 (M.D.Tenn. 2005), aff’d by Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 211 Fed.Appx. 373 (2006).
9 129 S. Ct. at 851.
10 Id. at 852, quoting Brake, Retaliation, 90 Minn. L.Rev. 18, 20 (2005).
11 See 42 U.S.C. § 2000e-3(a).
12 The Sixth Circuit rejected retaliation by association claims and overruled prior circuit precedent on this issue in an en banc decision rendered on June 5, 2009 in Thompson v. North American Stainless, L.P., 2009 WL 1563443 joining the Third, Fifth and Eight Circuits in declining to recognize such claims. The EEOC recognizes a claim for third party retaliation in circumstances where the employee has not engaged personally in any protected activity. See, e.g., 2 EEOC Compliance Manual §8.II(B)(3)(c). Wu v. Thomas, 863 F.2d 1543, 1547-48 (11th Cir. 1989) and McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996) lend some support for the EEOC’s view.
13 See Christopher v. Stouder Memorial Hospital, 936 F.2d 870 (6th Cir.), cert. denied, 502 U.S. 1013 (1991).
14 Clark County v. Breeden, 532 U.S. 268 (2001) (Dismissing claim of retaliation after holding that no reasonable person would have concluded that the alleged conduct amounted to sexual harassment in violation of Title VII). See also Moore v. City of Philadelphia, 461 F.3d 331 (3rd Cir. 2006) (plaintiffs claim of retaliation could go forward as there was an objectively reasonable belief that the employer had engaged in unlawful discrimination); Harper v. Blockbuster, 139 F.3d 1385 (11th Cir. 1998) (plaintiffs could not proceed on claim of retaliation as they lacked an objective, good-faith belief that they had been subjected to unlawful discrimination); Tatt v. Atlanta Gas Light Company, 138 Fed.Appx. 145 (11th Cir. 2005); Mattson v. Caterpillar, 359 F.3d 885 (7th Cir. 2004). There is some disagreement as to whether this good-faith requirement applies to the participation clause. A few courts have allowed a claim of retaliation to proceed by an individual who participated in a discrimination case even if it is established later that the case was without merit and the underlying charges were malicious and defamatory. See Johnson v. University of Cincinnati, 215 F.3d 561 (6th Cir. 2000); Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304 (6th Cir. 1989). In Mattson v. Caterpillar, Inc, the court concluded that the same standard should apply to both opposition and participation clause cases, meaning the claim of underlying discrimination must not be utterly baseless. See Mattson at 891.
15 See Brannum v. Missouri Department of Corrections, 518 F.3d 542 (8th Cir. 2008); Webb-Edwards v. Orange County Sheriff’s Office, 525 F.3d 1013 (11th Cir. 2008).
16 Moore v. City of Philadelphia, 461 F.3d 331, 345, (3rd Cir. 2006), quoting Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (1996). See also; McClain v. NorthWest Community Corrections Center Judicial Corrections Board, 440 F.3d 320 (6th Cir. 2006); Trent v. Valley Electric Association, Inc., 41 F.3d 524 (9th Cir. 1994).
17 548 U.S. 53 (2006).
18 See Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir.); Manning v. Metropolitan Life Insurance Co., 127 F.3d 686 (8th Cir. 1997).
19 See Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. 2001); Robinson v. Pittsburgh, 120 F.3d 1286 (3rd Cir. 1997).
20 See Rochon v. Gonzales, 438 F.3d 1211 (C.A.D.C. 2006); Washington v. Illinois Department of Revenue, 420 F.3d 658 (7th Cir. 2005); EEOC v. Outback Steakhouse of Florida, 75 F.Supp.2d 756 (N.D.Ohio 1999).
21 White v. Burlington Northern & Sante Fe Railway Co., 364 F.3d 789 (6th Cir. 2002).
22 White v. Burlington Northern & Santa Fe Railway Co., 364 F.3d 789 (6th Cir. 2004), rev’g 310 F.3d 443 (2002).
23 548 U.S. at 67.
24 Id. at 64, quoting Rochon v. Gonzales, 438 F.3d 1211, 1213 (D.C.Cir. 2006) (retaliation based on the FBI’s refusal to investigate threats made by an inmate against former FBI agent).
25 Id. at 65.
26 Id. at 69.
27 Id. at 68-69.
28 Id. at 69.
30 Id. at 72.
31 Id. at 72-73. Post-Burlington Northern cases include Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008) (adverse action was taken after an employee who complained of discrimination received a negative performance evaluation and thus was denied a merit increase, despite the fact that the employee later successfully challenged the evaluation and was awarded back pay); Nagle v. Village of Calumet Park, 554 F.3d 1106 (7th Cir. 2009) (Police officer did not suffer adverse action as needed in his claim of retaliation when he was reassigned to less prestigious strip mall detail).
32 461 F.3d 331 (3rd Cir. 2006).
33 Id. at 338.
34 See Nichols v. Southern Illinois University-Edwardsville, 510 F.3d 772 (7th Cir. 2008).
35 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); St. Mary’s House Ctr. v. Hicks, 509 U.S. 502 (1993).
36 Nichols v. Southern Illinois University-Edwardsville, 510 F.3d 772 (7th Cir. 2008) (officers’ claim of retaliation failed when employer’s stated reasons for firing officers were substantiated by the merit board. Officers were fired not for engaging in protected activity but, rather, following a determination that officers were grossly insubordinate and made false statements regarding the chief and other officials); Hervey v. County of Koochinching, 527 F.3d 711 (8th Cir. 2008).
37 Hervey v. County of Koochinching, 527 F.3d 711 (8th Cir. 2008); Green v. Franklin National Bank of Minneapolis, 459 F.3d 903 (8th Cir. 2006); Rochon v. Gonzales, 438 F.3d 1211 (3rd Cir. 2006) (causation established with proximity in time to the protected activity and the adverse action).
38 Hervey v. County of Koochinching, 527 F.3d 711, 723 (8th Cir. 2008) (termination of officer not in retaliation for pursuing claim of discrimination but rather on account of acts of insubordination and performance-related concerns); Webb-Edwards v. Orange County Sheriff’s Office, 525 F.3d 1013 (11th Cir. 2008) (plaintiff failed to establish an inference of retaliatory motive when decision to not transfer her to school resource officer occurred six months after she complained of sexual harassment).
39 EEOC Compl.Man. at § E(II), citing Hossaini v. Western Missouri Medical Center, 97 F.3d 1085 (8th Cir. 1996).