In a recent publication, the Equal Employment Opportunity Commission (EEOC) noted that complaints of retaliation had doubled over the past 20 years. As a result, retaliation is now the most frequently alleged basis of discrimination. But what exactly is retaliation? Can an employee claim retaliation any time an employer takes action against an employee complains about his or her work? The short answer is no. A retaliation claim is one that challenges action taken as a result of equal employment opportunity-related (EEO) activity. To establish a claim for retaliation, an employee must prove three things: (1) That the employee engaged in protected activity; (2) that there was a materially adverse action taken by the employer; and (3) that there is a causal connection between the protected activity and the materially adverse action.
Protected activity includes either participating in an EEO process or opposing discrimination. Participating in an EEO process can include filing a charge with the EEOC, filing a lawsuit, testifying as a witness, or participating in an investigation. Participation in a protected activity can also include less formal activity such as filing an EEO related complaint with human resources. Opposition includes any activity where the employee communicates a belief that the employer has engaged in an EEO violation. Whether based on participation or opposing discrimination, an employee does not have to prove that the employer’s conduct is unlawful. Rather, as long as the employee has a good faith belief that the underlying conduct was unlawful, a claim for retaliation may still exist.
Title VII of the Civil Rights Act of 1964, the Age Discrimination and Employment Act, Title V of the Americans with Disabilities Act, Section 501 of the Rehabilitation Act, the Equal Pay Act and Title II of the Genetic Information Non-Discrimination Act all contain anti-retaliation provisions. The EEOC has jurisdiction to investigate claims of retaliation involving all of these laws and for most of these laws, an employee is required to file a charge with the EEOC before bringing a lawsuit. There are other laws, some of which we have already discussed, which also contain antiretaliation provisions. This would include the Family Medical Leave Act and the Fair Labor Standards Act; however, the EEOC does not have jurisdiction to investigate violations of these laws.
One law that we have not previously discussed is the National Labor Relations Act (NLRA). The NLRA does not just apply to those who are already members of a union. The NLRA prevents employers from retaliating against employees who seek to improve their working conditions through attempting to form a union or even those who discuss wages and working conditions.
It is important to note that an employee who complains about his or her job is not necessarily engaging in protected activity. As an example, an employee who files a complaint with human resources claiming to have received an unfair review from his or her supervisor, is likely not engaging in protected activity. Unless that employee’s complaint stems from some complaint of discrimination related to race, gender, religion, disability, age, national origin or for exercising a protected right, it will not be considered protected activity. If an employee is not engaged in a protected activity, then a claim for retaliation will not lie even if the employer takes adverse action against the employee.
The second element of a retaliation claim relates to a materially adverse action taken by an employer. Materially adverse is defined as an action that might deter a reasonable person from engaging in a protected activity. Obvious types of materially adverse actions would include suspension, demotion and termination. More subtle forms of materially adverse actions might include warnings, reprimands, unfavorable performance evaluations, stripping an employee of previously held responsibilities and even being unfairly critical of employee’s work.
The final element of a retaliation claim is establishing a causal connection between the protected activity and the adverse action. In University of Texas Southwest Medical Center v. Nassar, the Supreme Court reiterated that claims for retaliation will be analyzed under a “but-for” standard. In other words, an employee must show that but-for retaliatory motive, the employer would not have taken the materially adverse action. An employer may defeat a claim for retaliation by claiming that it was not aware that the employee had engaged in the protected activity. Likewise an employer might claim that despite the protected activity, it had a legitimate non-discriminatory reason for the action it took against the employee. Of course, an employee could then offer evidence that the employer’s legitimate non-discriminatory reason is merely a pretext. In analyzing whether there is a causal link between the protected activity and the materially adverse action, timing is particularly important. Although temporal proximity is not required, the more time that passes between the materially adverse action and the protected activity, the more difficult it will likely be for an employee to prove a causal connection between the two. Kristen Kraus