Retaliation – The Basics

Retaliation “occurs when an employer takes a materially adverse action because an individual has engaged in, or may engage in, activity in furtherance of the EEO laws the Commission enforces.” See EEOC Enforcement Guidance on Retaliation and Related Issues. These laws include Title VII of the Civil Rights Act of 1964 (“Title VII), the Age Discrimination in Employment Act (“ADEA”), Title V of the Americans with Disabilities Act (“ADA”), Section 501 of the Rehabilitation Act (“Section 501”), the Equal Pay Act (“EPA”), and Title II of the Genetic Information Nondiscrimination Act (“GINA”).

An individual alleging retaliation must prove three elements.

  1. The individual engaged in a protected activity.
  2. The employer took a materially adverse action.
  3. There is a causal connection between the protected activity and the materially adverse action.

Employers should note that retaliation claims may be made by individuals who are not employees. An employer who refuses to hire someone with a previous EEO complaint may be subject to a retaliation claim. Similarly, an employer who provides a negative reference (or refuses to provide a reference) to a former employee that made an EEO complaint may be subject to a claim.

Protected Activity

Generally, protected activity consists of participating in an EEO process or opposing discriminatory conduct. The following points are helpful to understand conduct that constitutes a protected activity.

  • Participation is narrowly defined to refer to raising an EEO claim, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the EEO laws. The Commission considers internal complaints to fall within the scope of participation even if no charge of discrimination has been filed with the Commission.
  • Participation is broadly protected. All an individual must show is that he or she participated. There is no requirement that the EEO claim be meritorious or even timely filed. The Commission considers participation protected regardless of whether the individual had a reasonable, good faith belief that the underlying allegations violated EEO laws.
  • Opposition to discrimination protects a broader range of conduct than participation, but the manner of opposition must be reasonable and the opposition must be based on a reasonable good faith belief that something in the workplace may violate EEO laws. It is reasonable for an employee to believe conduct violates EEO laws if the Commission has adopted that interpretation.
  • Opposition is protected even if the individual does not use the words “harassment,” “discrimination,” or any legal terminology to describe the issue.
  • There is no requirement that the opposition be made to the employer. Complaints about the employer to others that that the employer learns about may be protected as opposition. This includes coworkers, an attorney, and even an individual’s legislator
  • Examples of opposition include complaining (or threatening to complain) about alleged discrimination against oneself or others, refusing to obey an order reasonably believed to be discriminatory, refusing to implement a discriminatory policy, advising an employer on EEO compliance, resisting sexual advances or intervening to protect others, talking to coworkers to gather information or evidence in support of a potential EEO claim, and requesting a reasonable accommodation for disability or religion.
  • Communications and complaints about EEO-related pay disparities also may constitute opposition conduct. So-called “pay secrecy” policies may impede knowledge of discrimination and deter protected activity. Massachusetts recently prohibited these policies through the Act to Establish Pay Equity, discussed in Andrew R. Dennington’s and Alexis P. Theriault’s August 5, 2016 post.

Materially Adverse Action

An action is materially adverse if it might deter a reasonable person from engaging in protected activity. An action need not be materially adverse standing alone, as long as the employer’s conduct, considered as a whole, would deter protected activity. In other words, context matters. The following points are helpful to understand what constitutes a materially adverse action.

  • Adverse actions are not limited to the obvious work-related actions—e.g., discharge, suspension, demotion, denial of a promotion, denial of job benefits, and refusal to hire.
  • Other types of adverse actions may include work-related threats, warnings, reprimands, negative or lowered evaluations, and transfers to less prestigious or desirable work or work locations.
  • There is no requirement that the adverse action be work-related or have a tangible effect on employment. The only question is whether the adverse action will dissuade a reasonable person from engaging in protected activity.
  • The Commission recognizes so-called third-party retaliation, wherein an employer takes a materially adverse action against an individual who engaged in protected activity by harming a closely related or associated third party. For example, an employer punishes an employee for engaging in protected activity by cancelling a vendor contract with the employee’s husband. Again, the key question is whether the adverse action will dissuade a reasonable person from engaging in protected activity.
  • An adverse action may be challenged as retaliation even if it does not stop the individual from asserting his or her EEO rights.
  • The individual does not need to be harmed by the adverse action. That is not to say that harm to the individual is irrelevant. The extent of harm is relevant to the amount of relief the individual may be awarded.

Causal Connection

A materially adverse action does not violate EEO laws unless there is a causal connection between the action and the protected activity. Although there are two causation standards that apply, private employers need only be concerned with “but for” causation, the stricter of the two standards. This standard requires the evidence to show that “but for” the retaliatory motive, the employer would not have taken the adverse action. The burden is on the individual making the retaliation claim to show that the employer had a retaliatory motive.

Although the individual making the retaliation claim has the burden to show the employer’s retaliatory motive, the following facts when presented by an employer may lead to a conclusion that the action was not in retaliation for the protected activity.

  • The employer did not know about the protected activity. Absent knowledge, there can be no retaliatory intent, and therefore no causal connection.
  • The employer has a legitimate non-retaliatory reason for the challenged action. Examples include poor performance, inadequate qualifications for the position sought, negative job references, misconduct, or qualifications, application, or interview performance that was inferior to the individual selected. Downsizing or a reduction in force also may constitute legitimate non-retaliatory reasons.
  • The adverse action would have occurred anyway. For example, the requisite causal connection will not be shown if the employer terminates an employee for repeated violations of workplace safety rules and insubordination even if the employer also was angry the employee for filing an EEO claim.

Avoiding Retaliation Claims

Employers should not misunderstand the breadth of the anti-retaliation protections to mean that employees can immunize themselves from the consequences for poor performance or improper behavior by raising an internal EEO allegation or filing a discrimination claim with the Commission or another enforcement agency. Employers remain free to discipline or terminate employees for legitimate and non-retaliatory reasons even if the employee has engaged in protected activity. Nevertheless, employers should be mindful of recommendations to take an action that may be considered materially adverse after an employee files an EEO claim or engages in other protected activity. An employer may reduce the chance of a retaliation violation by independently evaluating whether the adverse action is appropriate (and documenting that evaluation).

The Commission has recommended several “promising practices,” which may help reduce the risk of violations.

  • Employers should maintain a written, plain-language anti-retaliation policy. This policy should provide practical guidance on the employer’s expectations with user-friendly examples of what to do and what not to do. This should include examples of retaliation that managers and supervisors may not realize are actionable and guidance about interactions by managers and supervisors with employees who have lodged discrimination allegations against them. The anti-retaliation policy should explain clearly that retaliation can be subject to discipline, up to and including termination.
  • Employers should train all managers, supervisors, and employees on the anti-retaliation policy. This training should emphasize that retaliation will not be tolerated. There should be periodic refresher trainings.
  • Employers should create a reporting mechanism for employee concerns about retaliation, including access to a mechanism for informal resolution.
  • Managers and supervisors alleged to have engaged in discrimination should be provided with guidance about how to handle personal feelings about the allegations when carrying out their management duties.
  • Employers may choose to require managers and supervisors to identify their reasons for taking employment actions of consequence and ensure that necessary documentation exists to support the decision.

While implementing these practices may be helpful, employers should note that they will not insulate the employer from liability or damages.

Employers should be aware of potential claims for retaliation. If you have any questions about retaliation, please contact one of Conn Kavanaugh’s employment lawyers for assistance.

THOMAS J. GALLITANO

Posts by Tom

ALEXIS P. THERIAULT

Posts by Alexis

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