~ Retaliation ~
Trilogy of Title VII protections
- Terms and conditions of employment (Sec.703(a))
– Segregation and classification (Sec.703(a))
– Retaliation (Sec.704(a)) It is illegal 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 …, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing”
•Retaliation applies to all law and amendments that relate to civil rights
>>> The legislation above incorporates:
(1) an opposition clause covering complaints made relating to
employer practices, and
(2) a participation clause covering formal legal claims
Retaliation Claims
Three Prongs in Retaliation Claims
Prong1
Plaintiff engages in protected activity by (1) complaining about
an employer practice or (2) filing a formal claim of
discrimination
Prong 2
After engaging in protected activity, plaintiff suffers a
materially adverse action
Prong 3
Plaintiff must demonstrate a causal connection between
alleged materially adverse action and the protected activity
Crawford v. Metro. Gvt. of Nashville (2009)
[What constitutes opposition of a protected activity?]
Crawford identified several examples of sexual harassment by a supervisor
when interviewed as part of a inquiry conducted by the Human Resources
department
She was subsequently fired and sued for retaliation
The lower courts ruled in favor of the company because the plaintiff had NOT
satisfy the opposition clause (she had simply answered questions –a "nonactive" complaint).
The Supreme Court ruled for Crawford stating that the law protects witnesses
who agree to answer questions as part of an investigation – counts as
“opposition”
FROM JUSTICE SOUTER “ if an employee reporting discrimination in answer to
an employer's questions could be penalized with no remedy, prudent employees would
have a good reason to keep quiet about Title VII offenses."
Why is a Material Adverse Action?
Three Theories of Materially Adverse Actions
Ultimate
Employment
Limited to ultimate employment decisions such as hiring,
granting leave, promotion, discharge and compensation
Adverse
Employment
Retaliatory act must interfere with terms, conditions and
privileges of employment, but requires no tangible
employment consequence
EEOC
Deterrence
Retaliatory act must deter a reasonable person from engaging
in protected activity; does not require an ultimate employment
decision or interference with terms/conditions/privileges of
employment
~ Ultimate Employment ~
– Defined by the 5th circuit in Mattern v. Eastman Kodak (1997)
• Mattern filed a sexual harassment suit and eventually quit claiming she
was harassed by other employees after she file suit
• District court found for Kodak on the primary SH claim, but sided with
Mattern on retaliation
• The 5th circuit overturned on retaliation because no Ultimate
Employment decision was shown before she resigned
– Lederberger v. Stangler (1997)
• Lederberger complained about a company policy (e.g., deference to AfricanAmerican employees)
• Company reassigned her a new staff
• District court supported the retaliation charge (suffered loss of
status/prestige)
• The 8th circuit applied the Ultimate Employment standard and reversed
– UE does NOT include hostile harassment conditions that interfere with the
terms and conditions of employment unless that interference rises to the level
of constructive discharge
~ Adverse Employment ~
•
Less restrictive than Ultimate Employment, but also employer friendly
•
Retaliatory act substantially interfere with the terms and conditions of
employment Sec.703(a)
–
Jensen v. Potter (2006)
• Jensen complained she was propositioned and threatened by her boss (he
was fired)
• She was reassigned to her boss’ prior station and claimed 1 ½ year long
harassment (e.g., insults) by co-workers (friends of her former boss). She
complained many times – nothing was done
• Jensen sued for SH and co-worker retaliation
• The district court granted summary judgment for the defendant (SJD)
for insufficient evidence to support harassment claim
• The 3rd circuit overturned the ruling --- retaliatory behavior rose to
level (e.g., frequency and severity of insults) of illegal harassment
under Title VII (ruling by Alito an hour before he was sworn in as SC
Justice!). Co-worker’s behavior interfered with terms and conditions …
EEOC Deterrence
•
Would deter a reasonable worker from making or supporting a charge of
discrimination
• More employee friendly
• Requires neither an ultimate employment decision nor interference with
the terms and conditions of employment
Washington v. Illinois Dept. of Revenue (2005)
Plaintiff had a flextime schedule (7am to 3pm) to care for her mentally retarded child
Filed a claim of racial discrimination against her supervisor
She was ordered to work a 9am to 5pm shift and refused to do so
Her position was abolished, was laterally transferred to the same position with a new
supervisor, required to work 9am to 5pm shift, and reapply for flextime.
As a result, Washington had to use sick leave and vacation time to care for her child
The district court ruled SJD, 7th Circuit overturned, using EEOC Deterrence
Washington v. Illinois Dept. of Revenue (cont.)
The 7th Circuit ruled that “because of her son’s medical condition,” the
reassignment was a “materially adverse change for her,” thus satisfying the
EEOC Deterrence standard. A similar ruling was previously rendered by the
9th Circuit in Ray v. Henderson (2000). In this case, a postal worker who was
previously granted flextime to care for his sick wife, lost that privilege after he
opposed an employer practice.
An employer's action is not material under § 2000e-3(a) if it would not have
dissuaded a reasonable worker from making or supporting a charge of
discrimination. By and large a reassignment that does not affect pay or
promotion opportunities lacks this potential to dissuade and thus is not
actionable. But "by and large" differs from "never."
We phrase the standard in general terms because the significance of any given
act of retaliation will often depend upon the particular circumstances. Context
matters. ….. A schedule change in an employee's work schedule may make little
difference to many workers, but may matter enormously to a young mother with
school age children
– The EEOC issued guidance on retaliation in Section
8 of its Compliance Manual on May 20, 1998
– It clearly established EEOC Deterrence as the basis
for defining a materially adverse action
The statutory retaliation clause prohibits 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
Prong 3: Establishing a Causal Connection
A key element in most successful retaliation claims is a close
temporal proximity between Prongs 1 (engaging in a
protected activity) and 2 (taking a material adverse action)
In Clark County School District v. Breeden (2001), the Supreme
Court established that temporal proximity between the
protected behavior and the challenged retaliatory act has to
be “very close” to establish a prima facie case of retaliation
The Court also endorsed two lower court rulings that
intervals of three months (Richmond v. Oneok, 1997) and four
months (Hughes v. Derwinski, 1992) were too long
Prior Knowledge of Employer
For a causal connection to be made, evidence must exist that
the employer knew or should have known about the
employee's opposition or participation
Robinson v. Shell Oil (1997)
[Who is protected?]
Charles Robinson was fired from Shell Oil and sued for race discrimination
He applied for another job, and the prospective employer requested a reference
letter from Shell Oil.
Learned that the letter was negative -- Robinson filed a 704(a) retaliation claim
Shell Oil argued the term “employee” covers only current employees and
applicants
Supreme Court reversed lower courts:
The EEOC quite persuasively maintains that it would be destructive of this purpose of the
antiretaliation provision for an employer to be able to retaliate with impunity against an
entire class of acts under Title VII--for example, complaints regarding discriminatory
termination. We agree with these contentions and find that they support the inclusive
interpretation of "employees" in § 704(a) that is already suggested by the broader
context of Title VII.
Justice Thomas used the EEOC Compliance Manuel in this case – main purpose of
Section 704(a) is to “deter victims from complaining to the EEOC”
BNSF v. White
[Supreme Court and Material Adverse Action]
• White hired as track laborer and later reassigned to a forklift operator
• Co-workers complained about her reassignment (not given to a more senior male)
1) White humiliated by her supervisor in front of co-workers (sexual harassment);
she complained and her supervisor was suspended
White transferred back to
laborer job
2) Disagreed with her boss --- he accused her of insubordination
(internal investigation found her to not be insubordinate)
Suspended for 37 days
• Lower courts generally favored the Adverse Employment standard (e.g.,
interference with terms and conditions of employment)
BNSF v. White (cont.)
Supreme Court endorsed the EEOC Deterrence standard for
retaliation claims
The anti-retaliation provision seeks to prevent employer interference
with "unfettereed access" to Title VIIs remedial mechanisms, It does
so by prohibiting employer actions that are likely to "deter victims
of discrimination from complaints to the EEOC, the courts,
and their employers
• Breyer feared that “an employer can effectively retaliate against an employee by
taking actions not directly related to his employment of by causing him harm
outside the workplace” ― which would rise to retaliation only under the EEOC
deterrence standard
• Breyer indicated the importance of context to distinguish between trivial versus
significant harms ― especially important for those with unique vulnerabilities
• Alito’s concern was that EEOC deterrence would permit trivial complaints to
rise to materially adverse actions
Summary
• Retaliation claims require three elements/prongs
– The plaintiff must engage in protected activity
– There must be a “materially adverse action”
• EEOC Deterrence includes any actions that would dissuade a reasonable
person from engaging in lawfully protected activities
– The plaintiff must causally connect the first two prongs
to each other, either directly or indirectly


An important element in establishing Prong 3 is a
close temporal proximity between Prongs 1 and 2
There must be evidence the employer knew or
should have known about the employee’s
participation or opposition
Total Charges
EEOC Claims by Discrimination Type in 2014
40,000
37,955
35,000
31,073
26,027
30,000
25,369
25,000
20,588
20,000
15,000
9,579
10,000
6,862
5,000
3,549
3,400
938
1,000
Retaliation
(Total)
Race
Sex
Disability
Age
National
Origin
Sexual
Religion
Pregnancy
Equal
Pay
Implications of BNSF v. White (2006)
• Did BSNF v. White increase retaliation claims?
– Supreme Court declared that EEOC deterrence was
appropriate standard
– 2001–2006 number of claims relatively stable
– Sudden increase in 2007 and 2008
– Increased rate of cases was likely due to BNSF v. White
not Robinson v. Shell Oil
(Significant) Harms Cited in EEOC
Compliance Manual
•
•
•
•
•
•
•
•
Threats
Reprimands
Negative performance evaluation
Harassment
Suspending/Limiting Access to Grievance
Unjustified negative job reference
Refusing to provide job reference
Putting employee under surveillance
Thompson v. North American Stainless (3rd Party
Retaliation)
Thompson’s fiancée, Miriam Regalado, filed a sex discrimination
charge with the (EEOC) against their employer, respondent
North American Stainless
NAS fired Thompson
Thompson filed his own charge and a subsequent suit under
Title VII of the Civil Rights Act, claiming that NAS fired
him to retaliate against Regalado for filing her sex
discrimination charge.
The District Court granted the company summary judgment
on the ground that third-party retaliation claims were not
permitted by Title VII. CA6 affirmed this decision
Supreme Court Decision
Thompson’s firing was unlawful retaliation
Title VII’s anti-retaliation provision must be construed to cover
a broad range of employer conduct
• It prohibits any employer action that “‘well might have
“dissuaded a reasonable worker from making or supporting a
discrimination charge
• A reasonable worker obviously might be dissuaded from engaging
in protected activity if she knew that her fiancé would be fired
Kasten v. Saint-Gobain Performance Plastics (2011)
Petitioner Kasten brought an anti-retaliation suit against his former
employer, (Saint-Gobain) under the Fair Labor Standards Act which
provides minimum wage, maximum hour, and overtime pay rules
The FLSA forbids employers “to discharge … any employee
because such employee has filed any complaint” alleging a
violation of the Act
Plaintiff claimed he was discharged because he orally complained
to company officials about the company's placement of time clocks
in a location that prevented workers from receiving credit for the
time they spent donning and doffing work-related protective gear
District Court granted Saint-Gobain summary judgment,
concluding that the Act's anti-retaliation provision did not cover
oral complaints. The Seventh Circuit affirmed.
~ Supreme Court Decision ~
What does “filed any complaint” mean? Formal, written form needed?
Dictionary definitions are not useful: Some define “filed” as something
in writing; others permit using “file” in conjunction with oral material
Oral filings were a known phenomenon when Act was passed (1938)
View of Other Agencies: The Secretary of Labor has consistently
held the view that “filed any complaint” covers both oral and written
complaints. The Equal Employment Opportunity Commission has set
out a similar view in its Compliance Manual and in multiple briefs.
Why would Congress want to limit the enforcement scheme’s
effectiveness by inhibiting use of the Act’s complaint procedure by
those who would find it difficult to reduce their complaints to
writing, particularly the illiterate, less educated, or overworked workers
who were most in need of the Act’s help at the time of passage?
Supreme Court Decision
Enforcement needs of this related statute argue for a broad
interpretation
The Court determined that Congress intended the antiretaliation provision to include oral complaints, observing
that a contrary conclusion would undermine the Act's basic
objectives and remove needed flexibility from those who
enforce the Act.
University of Texas Southwest Medical Center v. Nassar (2013)
Background: Agreement to offer vacant staff physician posts to University
faculty members
Nassar: Allegations consisted of being harassed on the job by his supervisor
(Levine) due to race and religion (e.g., “Middle Easterners are lazy”). Complained
to his supervisor’s boss (Fritz)
Nassar quit his university position but arranged to continue to work work as staff
physician. Nassar’s supervisor’s boss (Fritz) objected to the Hospital’s job offer,
which was then withdrawn
Nassar Sued:
1) Constructive discharge
2) Retaliation (complaining about being harassed)
2000e-2
Mixedmotive
claims
(m) Impermissible consideration of race, color, religion, sex, or national origin in employment
practices
Except as otherwise provided in this subchapter, an unlawful employment practice is established
when the complaining party demonstrates that race, color, religion, sex, or national origin was
a motivating factor for any employment practice, even though other factors also motivated
the practice.
Retaliation NOT included in mixed-motive section (age isn’t either)
As the dissent states, this section was added to CRA-91 to strengthen protections against
discrimination. But, it’s being used by the majority to reduce the force of the ban on
retaliation.
Amendment to place the word “sole” before “because of such individual’s race ...” was
rejected (Cong. Rec. 2728, 13837-13838 (1964)
University of Texas Southwest Medical Center v. Nassar (2013)
UNLAWFUL EMPLOYMENT PRACTICES
SEC. 2000e-2. [Section 703(a)]
(a)Employer practices
It shall be an unlawful employment practice for an employer –
So-called
status-based
claims
(1)to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would
deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s race, color, religion, sex, or national origin.
Retaliation
claims
OTHER UNLAWFUL EMPLOYMENT PRACTICES
SEC. 2000e-3. [Section 704(a)]
(a)Discrimination for making charges, testifying, assisting, or participating in enforcement
proceedings
It shall be an 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 subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under this
subchapter.
University of Texas Southwest Medical Center v. Nassar (2013)
To win a case of retaliation, plaintiffs must show that retaliation was the sole (butfor) reason for the adverse employment action (not a motivating factor, or one of
several).
• Retaliation is in a different section in the CRA, and
• Not mentioned in the mixed-motive section of CRA 1991
A much stricter standard