Search
  Share Print Page
Search


Filter results:
Dates: to

Apply Filters

People

Services

 

Alerts/Articles

Revenge Isn’t Wise: Avoiding Retaliation Claims
September 16, 2004
Author(s): Jeffrey M. Tanenbaum

In order to demonstrate a violation of Title VII’s prohibition against retaliation, the plaintiff must establish: (1) statutorily protected activity, (2) an adverse employment action, and (3) a “causal connection” between the protected activity and the adverse employment action. Each of these common components of a retaliation claim is explored briefly below.
by Jeffrey Tanenbaum

In order to demonstrate a violation of Title VII’s prohibition against retaliation, the plaintiff must establish: (1) statutorily protected activity, (2) an adverse employment action, and (3) a “causal connection” between the protected activity and the adverse employment action. Each of these common components of a retaliation claim is explored briefly below.
by Jeffrey Tanenbaum

There are, of course, many laws that prohibit employers from taking adverse action against their employees for participating in protected activity or opposing unlawful employment practices. Such laws include Title VII, the FEHA, the Age Discrimination in Employment Act, the Equal Pay Act, the Fair Labor Standards Act, the Americans with Disabilities Act, the Immigration Reform and Control Act (IRCA), 42 USC § 1981, Cal/OSHA, the California workers’ compensation scheme, the National Labor Relations Act, Executive Order 11246, section 503 of the Rehabilitation Act, and the Vietnam Veterans’ Readjustment Assistance Act.

A typical example is the antiretaliation clause found in Title VII, which provides that:

It shall be unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment…because he has opposed any practice, made an unlawful employment practice by this [title], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this [title].[1]

In order to demonstrate a violation of Title VII’s prohibition against retaliation, the plaintiff must establish: (1) statutorily protected activity (i.e., that the employee engaged in protected “participation” or “opposition”), (2) an adverse employment action (e.g., discharge, failure to promote, suspension, or fines), and (3) a “causal connection” between the protected activity and the adverse employment action (i.e., intent to retaliate). Each of these common components of a retaliation claim is explored briefly below.

Statutorily Protected Activity

In order for an employee to state a claim under the “participation” clause, he or she must participate in some form of investigation, proceeding, or hearing. A classic example of participatory conduct would be filing a charge of discrimination with the EEOC. However, other, less obvious conduct is also considered protected participation, including expressing an intent to file an administrative charge or assisting fellow workers in their discrimination claims. Indeed, the courts liberally interpret the participation clause to further the goal of eradicating unlawful employment discrimination. For an employer, this means that participatory conduct remains protected even if the employee is ultimately wrong on the merits of the administrative charge, perhaps even when the contents of that underlying charge are malicious, defamatory, and false.[2]

Employees may also engage in statutorily protected activity by opposing unlawful employment practices. Certain types of employee conduct are clearly protected “opposition practices,” such as filing a complaint or protesting to the employer about an employment practice. Even meetings or requests for meetings to discuss an employment practice generally are found to constitute protected opposition.[3] Other protected “opposition” activity can include asking an employer whether a protected classification under Title VII played a part in an employment decision, and reporting to or contacting an attorney after complaining about harassment.

The courts generally find that opposition is protected when the employee has a good-faith (subjective) and reasonable (objective) belief that the practice they opposed violated Title VII.[4] However, courts do not protect all forms of employee conduct as lawful opposition. An employee’s “self-help” activities, such as insubordination, may become so disruptive or violent they may be found outside the bounds of the opposition clause. Additionally, if an employee’s opposition substantially interferes with his or her job performance, Title VII’s retaliation provision will not prevent the employer from taking adverse action.[5] Needless to say, however, opposition to discrimination cannot automatically be equated with poor performance. In one highly questionable decision, where an employee addressed a letter to the employer’s major customer that protested the employer’s receipt of an affirmative action award, the court found such conduct to be protected. The court reasoned that although the employee’s activity threatened to disrupt the relationship between the employer and its important customer, it did not disrupt the workplace and had no effect on the employee’s job performance.[6]

Adverse Employment Actions

Once an employee has engaged in statutorily protected participation or opposition, the question becomes whether the employer has taken “adverse employment action” against the employee. The courts have held that prohibited employer conduct includes many traditional employment decisions, including refusal to hire, failure to promote, failure to rehire, refusal to award a pay raise, suspension, fine, discharge, constructive discharge, and unfavorable letters of recommendation.

However, the law is clear that not every workplace slight is redressable. The act of retaliation must be “materially adverse,” or serious and tangible enough to alter the terms and conditions of employment.[7]

Nevertheless, the law of what constitutes retaliation is far from clear. As one court recognized, “[t]he law does not take a ‘laundry list’ approach to retaliation, because unfortunately its forms are as varied as the human imagination will permit.”[8] The important lesson for employers is that once an employee has engaged in statutorily protected activity, great care must be taken with respect to that employee’s subsequent workplace treatment.

Establishing Proof of Intent

The final element in a typical retaliation claim is a “causal connection.” In other words, to establish a claim of unlawful retaliation, an employee must establish that the employer’s adverse conduct was caused by the employee’s protected activity. The employee’s burden is quite minimal. In fact, suspicious timing frequently constitutes sufficient proof for an employee to create a factual question for a jury. However, an employer must be found to know about the employee’s protected activity before a retaliation claim will be successful.[9]

Practical Solutions for Avoiding or Resolving Retaliation Claims

Implementing an Antiretaliation Policy

Employers should consider the implementation of a specific antiretaliation policy that specifically states that unlawful retaliation will not be tolerated. This policy should contain internal reporting mechanisms similar to those in an unlawful harassment policy. If the alleged retaliation is originating from one’s supervisor, then clearly an alternative channel for complaint should be provided. The policy should promise an investigation and an appropriate response.

Training

Training of management and employees is critical. Managers need to be reassured that it is natural to feel anger toward an employee who might accuse them of unlawful conduct. Nonetheless, to show anger or to act on it is unprofessional and may legally worsen the situation. The true nightmare of a retaliation claim occurs when the underlying allegation (such as a claim of discrimination) is defeated but the retaliation claim is found to have merit. Training a manager on how to respond properly can be invaluable in avoiding actual retaliation as well as the appearance of retaliation.

Employees should also receive training on the content and procedures of the antiretaliation policy. This increases the likelihood of early reporting, emphasizes the importance placed on this topic by the employer, and makes any failure to complain harder for the employee to explain. Moreover, it is highly advantageous for the employer to learn about alleged unlawful conduct in the workplace as soon as possible. Early detection frequently means that corrective steps can be taken before the problem becomes exacerbated. And when false or questionable complaints are received, the employer can build a record while memories are fresh and the witnesses are still reachable.

Preempt Retaliation Claims as Soon as Statutorily Protected Activity Occurs

Employers should commence building a record of nonretaliation from the moment an employment law complaint is received. The complaining employee should be immediately reassured that the employer takes its antiretaliation policy seriously. The employee should be provided with an additional copy of the policy, and the employer should review its content and procedures with the employee, and document that this action was taken. Following this meeting, the employer should identify those managers affected by the complaint and/or supervising the complaining employee. These individuals should be provided with the same antiretaliation policy and information as was supplied to the employee.

Establish an Early Warning System

Establishing an early warning system for detecting possible retaliation is one of the most important and practical preventive steps an employer can take. An employer should not rely exclusively on the employee to initiate a retaliation complaint. One or two days after the initial protected activity, an employer should consider having an employer representative (usually a human resources manager) contact the employee. Apart from inquiring further about the original complaint, key questions can be asked to determine whether any indications of retaliation are being perceived.

Take Retaliation Complaints Seriously and Conduct a Separate Investigation

As noted earlier, retaliation complaints can expose an organization to significant potential liability even where the original underlying complaint appears frivolous. A retaliation complaint should be viewed as an opportunity to take swift action and avoid litigation and/or minimize possible damages. When the complaint is not justified, early documentation is invaluable. Moreover, it may be possible to reassure a complaining employee that concern about a particular action had nothing to do with the employee’s earlier complaint. Failure to get invited to meetings, slow reports, or other such events may have perfectly valid explanations, which can be documented and shared with the complaining employee.

With regard to the investigation of a complaint of retaliation, it is highly recommended that this be handled independently from the underlying investigation of the original complaint. This is also an opportunity to have a different investigator review allegations separately from the original investigator. If it is determined that neither the underlying complaint nor the retaliation complaint has validity, two separate investigators and investigations support that conclusion.

Don’t Become a Victim of Litigation Fear

Finally, although retaliation complaints must be taken seriously and must be carefully investigated, such complaints do not cast a lifetime protective shield around the complaining employee. An employee can still be a marginal or poor performer who may be evaluated negatively by the employer. It is essential that the employer continue to document deficiencies and discipline complaining employees for workplace offenses. Fundamental employment policies and practices must be maintained and enforced. The difference here is that this must be done with even greater care.


The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.


  1. 42 USC § 2000e 3(a).
    [Back to reference]
  2. See, e.g., Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir. 1969) (noting that Congress has evidenced a protective legislative intent, with the balance being “struck in favor of the employee in order to afford him the enunciated protection from an invidious discrimination, by protecting his right to file charges”).
    [Back to reference]
  3. See, e.g., Lindsay v. Mississippi Research & Dev. Ctr., 652 F.2d 488 (5th Cir. 1981).
    [Back to reference]
  4. See, e.g., Gifford v. Atchison, Topeka & Santa Fe Ry., 685 F.2d 1149 (9th Cir. 1982).
    [Back to reference]
  5. See, e.g., Rosser v. Laborers’ Int’l Union, 616 F.2d 221 (5th Cir. 1980).
    [Back to reference]
  6. EEOC v. Crown Zellerbach Corp., 720 F.2d 1008 (9th Cir. 1983).
    [Back to reference]
  7. See, e.g., Williams v. Bristol Myers Squibb Co., 85 F.2d 270 (7th Cir. 1996), Welsh v. Derwinski, 14 F.3d 85 (1st Cir. 1994).
    [Back to reference]
  8. Knox v. State of Ind., 93 F.3d 1327, 1334 (7th Cir. 1996).
    [Back to reference]
  9. See, e.g., Cohen v. Fred Meyer, Inc., 686 F.2d 793 (9th Cir. 1982); Hicks v. St. Mary’s Honor Ctr., 90 F.3d 285 (8th Cir. 1996).
    [Back to reference]

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.