EEO LAW BASICS
CHAPTER 9
RETALIATION

Section 704(a) of Title VII protects an employee or applicant for employment (and in some circuits a former employee) from adverse action. Likewise, most federal employment and discrimination statutes similarly include a prohibition on retaliation. Retaliation claims generally are analyzed the same, regardless of the authority under which filed, for the following reasons:

Employees are protected from retaliation on both the bases of participation and opposition:

1. Participation:

Where an employee has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under the relevant statute.

Court’s broadly construe the participation clauses and extend derivative protection where an employer mistakenly believes an employee has engaged in protected conduct and where an employee is related to or allied with someone who engaged in protected activity.

2. Opposition:

Where an employee has opposed any practice made an unlawful employment practice under the relevant statute.

Under the opposition clause the courts are not unanimous on what constitutes protected activity and consideration must be given to

(1) whether the practice opposed must be in fact and in law a violation of the relevant statute;

(2) under what circumstances broad or ambiguous complaints will be interpreted as opposition; and

(3) under what circumstances the form of the opposition, such as unlawful or disruptive conduct, will withdraw statutory protection that otherwise might exist.

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

1. That the employee engaged in statutorily protected conduct, i.e., either participation or opposition;

2. That the employee suffered adverse treatment; and

3. That a causal connection exists between the protected conduct and the adverse treatment. This nexus normally is established for purposes of a prima facie case by proof that the protected conduct preceded the adverse treatment and proof of the employer’s knowledge of the employee’s protected activity prior to taking the adverse action.

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

Courts have considered the following types of treatment adverse:

transfer,
reassignment,
termination,
suspension with pay,
failure to promote,
exclusion from necessary information,
refusal to process a grievance,
deviation from established inhouse procedures,
harassment,
disciplinary demotion,
unjustified evaluations and reports,
loss of normal work assignments,
etc.

Accordingly, adverse treatment may include actions that are not economically detrimental to the employee. However, courts consistently have held that personality conflicts and snubbing that may make an employee’s position more difficult do not constitute retaliation.

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

Where an employee establishes a prima facie case of retaliation, courts analyze the claim under the McDonnell Douglas Corp. v. Green, 411 U.S. 791 (1973), framework. The employer has the burden of producing evidence that it had a nonretaliatory, legitimate reason for its actions, i.e., insubordination, poor performance, lack of qualifications, reorganization. If the employer presents proof of a legitimate, nonretaliatory reason for its action, the employee has an opportunity to prove pretext, or that the employer is not being truthful. This effort frequently includes evidence that the employer treated the employee differently than similarly situated employees. The employee will seek to present evidence that creates disbelief of the employer’s proffered reason. Of uppermost importance is the temporal relationship between the protected conduct and the adverse action. Actions closer in time enhance an employee’s case, and vice versa.

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

The employee need not show that a retaliatory motive was the sole motive for the adverse treatment. If an employee demonstrates that the employer was motivated at least in part by the plaintiff’s protected conduct, then under Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the employee may prevail without necessitating the McDonnell Douglas burden shifting analysis. Where the employer can show it would have made the same decision it did even without the presence of a retaliatory motive, the employee would still be entitled to declaratory relief, injunctive relief (not including hiring, reinstatement or promotion), attorneys fees and costs.

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006