ELEMENTS OF RETALIATION
2) adverse action
3) causal connection between the protected activity and the adverse action
EEOC HANDBOOK ON RETALIATION
EEOC COMPLIANCE MANUAL
CHAPTER 8: RETALIATION
SECTION 2: ELEMENTS OF A RETALIATION CLAIM
2-A | OVERVIEW
2) adverse action
3) causal connection between the protected activity and the adverse action
2-B | PROTECTED ACTIVITY: OPPOSITION
1. Definition
While Title VII and the ADEA prohibit retaliation based on opposition to a practice made unlawful by those statutes, the ADA prohibits retaliation based on opposition to "any act or practice made unlawful by this chapter." The referenced chapter prohibits not only disability-based employment discrimination, but also disability discrimination in state and local government services, public accommodations, commercial facilities, and telecommunications. Thus, the ADA prohibits retaliation for opposing not just allegedly discriminatory employment practices but also practices made unlawful by the other titles of the statute.
2. Examples of Opposition
Threatening to file a complaint with the Commission, a state fair employment practices agency, union, court, or any other entity that receives complaints relating to discrimination is a form of opposition.
Example - CP tells her manager that if he fails to raise her salary to that of a male coworker who performs the same job, she will file a lawsuit under either the federal Equal Pay Act or under her state's parallel law. This statement constitutes "opposition."* Complaining to anyone about alleged discrimination against oneself or others
A complaint or protest about alleged employment discrimination to a manager, union official, co-worker, company EEO official, attorney, newspaper reporter, Congressperson, or anyone else constitutes opposition, picketing or engaging in a production slow-down. Furthermore, a complaint on behalf of another, or by an employee's representative, rather than by the employee herself, Opposition may be nonverbal, such as constitutes protected opposition by both the person who makes the complaint and the person on behalf of whom the complaint is made.
A complaint about an employment practice constitutes protected opposition only if the individual explicitly or implicitly communicates a belief that the practice constitutes unlawful employment discrimination.13 Because individuals often may not know the specific requirements of the anti-discrimination laws enforced by the EEOC, they may make broad or ambiguous complaints of unfair treatment. Such a protest is protected opposition if the complaint would reasonably have been interpreted as opposition to employment discrimination.
Example 1 - CP calls the President of R's parent company to protest religious discrimination by R. CP's protest constitutes "opposition."* Refusing to obey an order because of a reasonable belief that it is discriminatory
Example 2 - CP complains to co-workers about harassment of a disabled employee by a supervisor. This complaint constitutes "opposition."
Example 3 - CP complains to her foreman about graffiti in her workplace that is derogatory toward women. Although CP does not specify that she believes the graffiti creates a hostile work environment based on sex, her complaint reasonably would have been interpreted by the foreman as opposition to sex discrimination, due to the sex-based content of the graffiti. Her complaint therefore constitutes "opposition."
Example 4 - CP (African-American) requests a wage increase from R, arguing that he deserves to get paid a higher salary. He does not state or suggest a belief that he is being subjected to wage discrimination based on race. There also is no basis to conclude that R would reasonably have interpreted his complaint as opposition to race discrimination because the challenged unfairness could have been based on any of several reasons. CP's protest therefore does not constitute protected "opposition."
Refusal to obey an order constitutes protected opposition if the individual reasonably believes that the order requires him or her to carry out unlawful employment discrimination.
Example - CP works for an employment agency. His manager instructs him not to refer any African-Americans to a particular client, based on the client's request. CP refuses to obey the order and refers an African-American applicant to that client. CP's action constitutes "opposition."Refusal to obey an order also constitutes protected opposition if the individual reasonably believes that the order makes discrimination a term or condition of employment. For example, in one case a court recognized that a correction officer's refusal to cooperate with the defendant' s practice of allowing white but not black inmates to shower after work shifts constituted protected opposition. Even if the inmates were not "employees," the plaintiff could show that his enforcement of the policy made race discrimination a term or condition of his employment. Thus, his refusal to obey the order constituted opposition to an unlawful employment practice.14
* Requesting reasonable accommodation or religious accommodation
A request for reasonable accommodation of a disability constitutes protected activity under Section 503 of the ADA. Although a person making such a request might not literally "oppose" discrimination or "participate" in the administrative or judicial complaint process, s/he is protected against retaliation for making the request. As one court stated,
It would seem anomalous... to think Congress intended no retaliation protection for employees who request a reasonable accommodation unless they also file a formal charge. This would leave employees unprotected if an employer granted the accommodation and shortly thereafter terminated the employee in retaliation.15By the same rationale, persons requesting religious accommodation under Title VII are protected against retaliation for making such requests.
3. Standards Governing Application of the Opposition Clause
a. Manner of Opposition Must Be Reasonable
Public criticism of alleged discrimination may be a reasonable form of opposition. Courts have protected an employee's right to inform an employer's customers about the employer's alleged discrimination, as well as the right to engage in peaceful picketing to oppose allegedly discriminatory employment practices.16
On the other hand, courts have found that the following activities were not reasonable and thus not protected:
making an overwhelming number of complaints based on unsupported allegations and bypassing the chain of command in bringing the complaints18; and
badgering a subordinate employee to give a witness statement in support of an EEOC charge and attempting to coerce her to change her statement.19
If an employee's protests against allegedly discriminatory employment practices interfere with job performance to the extent that they render him or her ineffective in the job, the retaliation provisions do not immunize the worker from appropriate discipline or discharge.20 Opposition to perceived discrimination does not serve as license for the employee to neglect job duties.
b. Opposition Need Only Be Based on Reasonable and Good Faith Belief
Example 2 - Same as above, except the job sought by CP was in accounting and required a CPA license, which CP lacked and the selectee had. CP knew that it was necessary to have a CPA license to perform this job. CP has not engaged in protected opposition because she did not have a reasonable and good faith belief that she was rejected because of sex discrimination.
c. Person Claiming Retaliation Need Not Be the Person Who Engaged in Opposition
See Section 8-II C.3 for discussion of similar principle under "participation" clause.
d. Practices Opposed Need Not Have Been Engaged in by the Named Respondent
Footnotes
13 See, e.g., Barber v. CSX Distrib. Services, 68 F.3d 694(3d Cir. 1995) (plaintiff's letter to defendant's human resources department complaining about unfair treatment and expressing dissatisfaction that job he sought went to a less qualified individual did not constitute ADEA opposition because letter did not explicitly or implicitly allege that age was reason for alleged unfairness).
14 Moyo v. Gomez, 40 F.3d 982(9th Cir. 1994), cert, denied, 513 U.S. 1081 (1995).
15 Soileau v. Guilford of Maine, 105 F.3d 12, 16 (1st Cir. 1997). See also Garza v. Abbott Laboratories, 940 F. Supp. 1227, 1294(N.D. Ill. 1996) (plaintiff engaged in statutorily protected expression by requesting accommodation for her disability). The courts in Soileau and Garza only considered whether accommodation requests fall within the opposition or participation clause in Section 503(a) of the ADA. Note, however, that Section 503(b) more broadly makes it unlawful to interfere with "the exercise or enjoyment of... any right granted or protected" by the statute.
16 See, e.g., Sumner v. United States Postal Service, 899 F.2d 203 (2dCir. 1990) (practices protected by opposition clause include writing letters to customers criticizing employer's alleged discrimination).
17 O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756(9th Cir. 1996).
18 Rollins v. Florida Dep't of Law Enforcement, 868 F.2d 397 (11th Cir. 1989).
19 Jackson v. St. Joseph State Hospital, 840 F.2d 1387 (8th Cir.), cert, denied, 488 U.S. 892(1988).
20 See, e.g., Coutu v. Martin County Bd. of Comm'rs, 47 F.3d 1068, 1074 (11th Cir. 1995) (no retaliation found where plaintiff was criticized by her supervisor not because she was opposing discrimination but because she was spending an inordinate amount of time in "employee advocacy" activities and was not completing other aspects of her personnel job).
21 This standard has been adopted by every circuit that has considered the issue. See, e.g., Little v. United Technologies, 103 F.3d 956, 960(11th Cir. 1997), and Trent v. Valley Electric Association, Inc., 41 F.3d 524, 526(9th Cir. 1994).
22 Berg v. La Crosse Cooler Co., 612 F.2d 1041, 1045 (7th Cir. 1980).
23 See, e.g., Murphy v. Cadillac Rubber & Plastics, Inc., 946 F. Supp. 1108, 1118 (IAJ.D. N.Y. 1996) (plaintiff stated claim of retaliation where he was subjected to adverse action based on his wife's protected activities).
2-C | PROTECTED ACTIVITY: PARTICIPATION
1. Definition
2. Participation Is Protected Regardless of Whether the Allegations in the Original Charge Were Valid or Reasonable
3. Person Claiming Retaliation Need Not Be the Person Who Engaged in Participation
4. The Practices Challenged in Prior or Pending Statutory Proceedings Need Not Have Been Engaged in by the Named Respondent
Footnotes
25 Hashimoto v. Dalton, 118 F.3d 671, 680(9th Cir. 1997).
26 See, e.g., Wyatt v. Boston, 35 F.3d 13, 15(1st Cir. 1994).
27 See , e.g., EEOC v. Ohio Edison Co., 7 F.3d 541, 544(6th Cir. 1993) (agreeing that plaintiff's allegation of reprisal for relative's protected activities states claim under Title VII); Thurman v. Robertshaw Control Co., 869 F. Supp. 934, 941(N.D. Ga. 1994) (plaintiff could make out first element of prima facie case of retaliation by showing that plaintiff's close relative participated in the complaint process).
The Commission disagrees with the Fifth Circuit's holding in Holt v. JTM Indus., 89 F.3d 1224(5th Cir. 1996), cert, denied, 117 S.Ct. 1821 (1997), that there was no unlawful retaliation where the plaintiff was put on paid administrative leave because his wife had filed an age discrimination charge.
28 See, e.g., Christopher v. Stouder Memorial Hosp., 936 F.2d 870, 873-74 (6th Cir.) (defendant's frequent reference to plaintiff's sex discrimination action against prior employer warranted inference that defendant's refusal to hire was retaliatory), cert, denied, 502 U.S. 1013 (1991).
2-D | ADVERSE ACTION
1. General Types of Adverse Actions
Suspending or limiting access to an internal grievance procedure also constitutes an "adverse action. " For example, in EEOC v. Board of Governors of State Colleges & Universities29, a university's collective bargaining agreement provided for a specific internal grievance procedure leading to arbitration. The agreement further provided that this procedure could be terminated if the employee sought resolution in any other forum, such as the EEOC. The Seventh Circuit ruled that termination of the grievance process constituted an adverse employment action in violation of the anti-retaliation clause of the ADEA.30
2. Adverse Actions Can Occur After the Employment Relationship Between the Charging Party and Respondent Has Ended
Examples of post-employment retaliation include actions that are designed to interfere with the individual's prospects for employment, such as giving an unjustified negative job reference, refusing to provide a job reference, and informing an individual's prospective employer about the individual's protected activity.33 However, a negative job reference about an individual who engaged in protected activity does not constitute unlawful retaliation unless the reference was based on a retaliatory motive. The truthfulness of the information in the reference may serve as a defense unless there is proof of pretext, such as evidence that the former employer routinely declines to offer information about its former employees' job performance and violated that policy with regard to an individual who engaged in protected activity.
3. Adverse Actions Need Not Qualify as "Ultimate Employment Actions" or Materially Affect the Terms or Conditions of Employment to Constitute Retaliation
The Commission disagrees with those decisions and concludes that such constructions are unduly restrictive. The statutory retaliation clauses prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Of course, petty slights and trivial annoyances are not actionable, as they are not likely to deter protected activity. More significant retaliatory treatment, however, can be challenged regardless of the level of harm. As the Ninth Circuit has stated, the degree of harm suffered by the individual "goes to the issue of damages, not liability."38
Example 1 - CP filed a charge alleging that he was racially harassed by his supervisor and co-workers. After learning about the charge, CP's manager asked two employees to keep CP under surveillance and report back about his activities. The surveillance constitutes an "adverse action" that is likely to deter protected activity, and is unlawful if it was conducted because of CP's protected activity.The Commission's position is based on statutory language and policy considerations. The anti-retaliation provisions are exceptionally broad. They make it unlawful "to discriminate" against an individual because of his or her protected activity. This is in contrast to the general anti-discrimination provisions which make it unlawful to discriminate with respect to an individual's "terms, conditions, or privileges of employment." The retaliation provisions set no qualifiers on the term "to discriminate," and therefore prohibit any discrimination that is reasonably likely to deter protected activity.39 They do not restrict the actions that can be challenged to those that affect the terms and conditions of employment.40 Thus, a violation will be found if an employer retaliates against a worker for engaging in protected activity through threats41, harassment in or out of the workplace, or any other adverse treatment that is reasonably likely to deter protected activity by that individual or other employees.42
Example 2 - CP filed a charge alleging that she was denied a promotion because of her gender. One week later, her supervisor invited a few employees out to lunch. CP believed that the reason he excluded her was because of her EEOC charge. Even if the supervisor chose not to invite CP because of her charge, this would not constitute unlawful retaliation because it is not reasonably likely to deter protected activity.
Example 3 - Same as Example 2, except that CP's supervisor invites all employees in CP's unit to regular weekly lunches. The supervisor excluded CP from these lunches after she filed the sex discrimination charge. If CP was excluded because of her charge, this would constitute unlawful retaliation since it could reasonably deter CP or others from engaging in protected activity.
This broad view of coverage accords with the primary purpose of the anti-retaliation provisions, which is to "[m]aintain[ ] unfettered access to statutory remedial mechanisms."43 Regardless of the degree or quality of harm to the particular complainant, retaliation harms the public interest by deterring others from filing a charge.44 An interpretation of Title VII that permits some forms of retaliation to go unpunished would undermine the effectiveness of the EEO statutes and conflict with the language and purpose of the anti-retaliation provisions.
Footnotes
30 See also Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991) (union's refusal to proceed with plaintiff's grievance after he filed race discrimination complaint with state agency constituted unlawful retaliation).
31 U.S., 117 S. Ct. 843 (1997).
32 The ADA, unlike the other anti-discrimination statutes, prohibits retaliation against "any individual" who has opposed discrimination based on disability or participated in the charge process. 42 U.S.C. §12203.
33 See, e.g., EEOC v. L. B. Foster, 123 F.3d 746 (3d Cir. 1997), cert, denied , 66 U.S. L.W. 3388(U.S. March 2, 1998); Ruedlinger v. Jarrett, 106 F.3d 212(7th Cir. 1997).
34 Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997).
35 EEOC v. L. B. Foster, 123 F.3d at 754.
36 See Ledergerber v. Stangler, 122 F.3d 1142(8th Cir. 1997) (reassignment of plaintiff's staff, with attendant loss of status, did not rise to level of ultimate employment decision to constitute actionable retaliation); Mattern v. Eastman Kodak Co.,104 F.3d 702(5th Cir.) (anti-retaliation provisions only bar "ultimate employment actions" that are retaliatory; harassment, reprimands, and poor evaluation could not be challenged), cert , denied, 118 S. Ct. 336 (1997).
37 See, e.g., Munday v. Waste Management of North America, 126 F.3d 239 (4th Cir. 1997) (employer's instruction to workers to shun plaintiff who had engaged in protected activity, to spy on her, and to report back to management whatever she said to them did not adversely affect plaintiff's terms, condition, or benefits of employment and therefore could not be challenged), cert, denied, 118 S. Ct. 1053 (1998).
38 Hashimoto, 118 F.3d at 676. See also EEOC v. L. B. Foster, 123 F.3d at 754 n.4(plaintiff need not prove that retaliatory denial of job reference caused prospective employer to reject her; such a showing is relevant only to damages, not liability); Smith v. Secretary of Navy, 659 F.2d 1113, 1120(D.C. Cir. 1981) ("the questions of statutory violation and appropriate statutory remedy are conceptually distinct. An illegal act of discrimination whether based on race or some other factor such as a motive of reprisal -- is a wrong in itself under Title VII, regardless of whether that wrong would warrant an award of [damages]").
39 See, e.g., Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) ("[t]here is nothing in the law of retaliation that restricts the type of retaliatory act that might be visited upon an employee who seeks to invoke her rights by filing a complaint"); Passer v. American Chemical Society, 935 F.2d 322, 331(D.C. Cir. 1991) (Section 704(a) broadly prohibits an employer from discriminating against its employees in any way for engaging in protected activity and does not "limit its reach only to acts of retaliation that take the form of cognizable employment actions such as discharge, transfer or demotion").
40 Even if there were a requirement that the challenged action affect the terms or conditions of employment, retaliatory acts that create a hostile work environment would meet that standard since, as the Supreme Court has made clear, the terms and condition of employment include the intangible work environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 64-67(1986). For examples of cases recognizing that retaliatory harassment is unlawful, see DeAngelis v. El Paso Municipal Police Officers Ass'n., 51 F.3d 591 (5th Cir.), cert , denied, 116 S. Ct. 473 (1995); Davis v. Tri-State Mack Distributor, 981 F.2d 340(8th Cir. 1992).
41 See McKnight v. General Motors Corp., 908 F.2d 104, 111(7th Cir. 1990) ("[Retaliation or a threat of retaliation is a common method of deterrence"), cert, denied, 499 U.S. 919(1991); Garcia v. Lawn, 805 F.2d 1400, 1401-02(9th Cir. 1986) (threatened transfer to undesirable location); Atkinson v. Oliver T. Carr Co., 40 FEP Cases(BNA) 1041, 1043-44(D.D.C. 1986) (threat to press criminal complaint).
42 For examples of cases finding unlawful retaliation based on adverse actions that did not affect the terms or conditions of employment, see Hashimoto, 118 F.3d at 675-76 (retaliatory job reference violated Title VII even though it did not cause failure to hire); Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996) (instigating criminal theft and forgery charges against former employee who filed EEOC charge found retaliatory); Passer, 935 F.2d at 331 (canceling symposium in honor of retired employee who filed ADEA charge found retaliatory).
43 Robinson v. Shell Oil Co., 117 S. Ct. 843, 848(1997).
44 Garcia, 805 F.2d at 1405.
2-E | PROOF OF CAUSAL CONNECTION
1. Direct Evidence
Direct evidence of a retaliatory motive is any written or verbal statement by a respondent official that s/he undertook the challenged action because the charging party engaged in protected activity. Such evidence also includes a written or oral statement by a respondent official that on its face demonstrates a bias toward the charging party based on his or her protected activity, along with evidence linking that bias to the adverse action. Such a link could be shown if the statement was made by the decision-maker at the time of the adverse action.46 Direct evidence of retaliation is rare.
Example - CP filed a charge against Respondent A, alleging that her supervisor sexually harassed and constructively discharged her. CP subsequently sued A and reached a settlement. When CP applied for a new job with Respondent B, she received a conditional offer subject to a reference check. When B called CP's former supervisor at A Co. for a reference, the supervisor said that CP was a "troublemaker," started a sex harassment lawsuit, and was not anyone B "would want to get mixed up with." B did not hire CP. She suspected that her former supervisor gave her a negative reference and filed retaliation charges against A and B. The EEOC investigator discovered notes memorializing the phone conversation between A and B. These notes are direct evidence of retaliation by A because they prove on their face that A told B about CP's protected activity and that A gave CP a negative reference because of that protected activity. These notes are not direct evidence of retaliation by B because they do not directly prove that B rejected CP because of her protected activity. However, the fact that B gave CP a conditional job offer and then decided not to hire her after learning about her protected activity is strong circumstantial evidence of B's retaliation.
(See Section 8-II E.2. below.)
2. Circumstantial Evidence
CIRCUMSTANTIAL EVIDENCE OF RETALIATION
2. Respondent produces evidence of a legitimate, non-retaliatory reason for the challenged action; and
3. Complainant proves that the reason advanced by the respondent is a pretext to hide the retaliatory motive.
(2) the person who undertook the adverse action was aware of the complainant's protected activity before taking the action.
Common non-retaliatory reasons offered by respondents for challenged actions include:
inadequate qualifications for the position sought;
violation of work rules or insubordination; and
with regard to negative job references, truthfulness of the information in the reference.
Even if the respondent produces evidence of a legitimate, nondiscriminatory reason for the challenged action, a violation will still be found if this explanation is a pretext designed to hide the true retaliatory motive. Typically, pretext is proved through evidence that the respondent treated the complainant differently from similarly situated employees or that the respondent's explanation for the adverse action is not believable. Pretext can also be shown if the respondent subjected the charging party's work performance to heightened scrutiny after she engaged in protected activity.52
Example 1- CP alleges that R denied her a promotion because she opposed the under-representation of women in management jobs and was therefore viewed as a "troublemaker." The promotion went to another female employee. R asserts that the selectee was better qualified for the job because she had a Masters in Business Administration, while CP only had a college degree. The EEOC investigator finds that this explanation is pretextual because CP has significantly greater experience working at R Company and experience has always been the most important criterion for selection for management jobs.
Example 2 - CP alleges that R gave him a negative job reference because he had filed an EEOC charge. R produces evidence that its negative statements to CP's prospective employer were honest assessments of CP's job performance. There is no proof of pretext, and therefore the investigator finds no retaliation.
Example 3 - Same as Example 2, except there is evidence that R routinely declines to offer information about former employees' job performance. R fails to offer a credible explanation for why it violated this policy with regard to CP. Therefore, pretext is found.
Footnotes
Some courts have ruled that Section 107 does not apply to retaliation claims. See, e.g., Woodson v. Scott Paper, 109 F.3d 913(3d Cir.), cert, denied, 118 S. Ct. 299(1997). Those courts apply Price Waterhouse v. Hopkins, and therefore absolve the employer of liability for proven retaliation if the establishes that it would have made the same decision in the absence of retaliation. Other courts have applied Section 107 to retaliation claims. See, e.g., Merritt v. Dillard Paper Co., 120 F.3d 1181, 1191(11th Cir. 1997).
The Commission concludes that Section 107 applies to retaliation. Courts have long held that the evidentiary framework for proving employment discrimination based on race, sex, or other protected class status also applies to claims of discrimination based on retaliation. Furthermore, an interpretation of Section 107 that permits proven retaliation to go unpunished undermines the purpose of the anti-retaliation provisions of maintaining unfettered access to the statutory remedial mechanism.
46 For example, in Merritt v. Dillard Paper Company, 120 F.3d 1181(11th Cir. 1997), the plaintiff testified in a co-worker's Title VII action about sexual harassment in the workplace. Shortly after the case was settled, the president of the company fired the plaintiff. The court found direct evidence of retaliation based on the president's statement to the plaintiff, "[y]our deposition was the most damning to Dillard 's case, and you no longer have a place here at Dillard Paper Company."
47 Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.), cert , denied, 474 U.S. 981 (1985).
48 970 F.2d 39 (5th Cir. 1992).
49 See Kachmar v. Sunguard Data Systems, 109 F.3d 173 (3d Cir. 1997) (district court erroneously dismissed plaintiff's retaliation claim because termination occurred nearly one year after her protected activity; when there may be reasons why adverse action was not taken immediately, absence of immediacy does not disprove causation).
50 Miller v. Vesta, Inc., 946 F. Supp. 697 (E.D. Wis. 1996).
51 Fields v. Phillips School of Business & Tech., 870 F. Supp. 149 (W.D. Tex.), aff'd mem., 59 F.3d 1242(5th Cir. 1994).
52 See, e.g., Hossaini v. Western Missouri Medical Center, 97 F.3d 1085 (8th Cir. 1996) (reasonable person could infer that defendant's explanation for plaintiff's discharge was pretextual where defendant launched investigation into allegedly improper conduct by plaintiff shortly after she engaged in protected activity).
You might need to reference it during your pursuit of justice.
For instance, you might need to examine one of these passages in order to protect yourself from organizations/judges/lawyers who break the law (see this example of a Florida judge who outright committed perjury).
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