Employment & Labor Insider

NOTE FROM ROBIN: In March, I began a series of very basic explanations of the federal laws that govern the workplace. The first installment covered discrimination in general, and the second installment covered religious accommodation. Subsequent posts will get into other areas of employment law, including more detailed reviews of each of the various types of discrimination, disability accommodation, harassment, and wage-hour. If there is a topic that you'd like to see covered, please send me an email or leave a comment here.

Just about every state or federal employment law has an anti-retaliation provision. Very simply put, anti-retaliation provisions are intended to protect individuals who either pursue their rights under the law, who assist others in pursuing their rights, or who oppose employer practices that they believe violate the law.

This post will focus on retaliation under the federal anti-discrimination laws. A person claiming retaliation must prove three things: 

• The individual engaged in legally protected activity.
• The employer took "materially adverse action" against the individual.
• There is a "causal connection" between the legally protected activity and the adverse action.

Protected activity. Legally protected activity can include participation (for example, filing a charge of discrimination, testifying in a discrimination case or otherwise cooperating in a government investigation), or opposition (for example, complaining internally about discrimination, refusing to carry out a discriminatory directive, engaging in public protests of an employer's discriminatory activity, and much more).

If the protected activity is "oppositional," the employee will not be protected unless his or her belief that discrimination occurred -- and the manner in which the opposition is expressed -- are reasonable. By contrast, "participation" activity is protected even if it is not reasonable.

Materially adverse action. Second, the employer must have taken "materially adverse action" against the employee. The most obvious examples would be discharge, demotion, layoff, or reductions in pay or benefits. However, many other actions can also be considered "materially adverse." According to a 2006 decision of the U.S. Supreme Court, an action is "materially adverse" if it would deter a reasonable person from engaging in the protected activity. In that case, Burlington Northern & Santa Fe Railway Co. v. White, the plaintiff complained about alleged sexual harassment and discriminatory behavior in the workplace. She was subsequently assigned less favorable job duties but with no reduction in pay. Then, she was suspended without pay for 37 days, but reinstated with full back pay. The Supreme Court unanimously found that both of these actions were "materially adverse." With regard to the suspension, the Court found that having to go 37 days without pay (which occurred during the Christmas holiday season) could deter a reasonable person from engaging in protected activity -- even if she eventually received full compensation.

"Materially adverse action" can occur before the individual is employed (for example, an applicant who is not hired by Employer B because he filed a charge against Employer A) or after the individual's employment has ended (for example, an employer who gives a negative job reference about a former employee). It can also be directed, not at the employee who engaged in the protected activity, but at someone close to that employee, such as a spouse, other family member, or close friend. If the employer does that, then both the employee who engaged in the protected activity and the "significant other" would have valid retaliation claims against the employer.

Another form of "materially adverse action" is what the Equal Employment Opportunity Commission calls "retaliatory harassment." Probably self-explanatory, but this would be harassing an employee for engaging in protected activity. 

Causal connection. Finally, the employee has to prove that there is a "causal connection" between the protected activity and the adverse action. In other words, there has to be some evidence that the adverse action was taken because of the protected activity, and not for some other reason. Guidance issued by the EEOC in 2016 provides some good examples of facts that might show a causal connection:

• Short time elapsed between protected activity and adverse action
• Oral or written comments from a supervisor or other company representative indicating a retaliatory motive
• "Similarly situated" employees were treated more favorably

On the other hand, some facts would tend to show that there was no causal connection:

• Employer was not aware that employee had engaged in protected activity when it took the adverse action
• Long period between protected activity and adverse action
• Intervening employee misconduct after protected activity but before adverse action
• Adverse action affected all "similarly situated" employees -- for example, a departmental reduction in force
• Employee had genuine performance problems or violated work rules

Legally, the employee must show that "but for" the protected activity, the employer would not have taken the adverse action. If the employer had more than one reason for taking the action, the protected activity must have been the decisive factor.

Retaliation has been the most common type of EEOC charge for quite some time, and was included in more than 50 percent of all charges filed in Fiscal Years 2018, 2019, 2020, and 2021. Retaliation claims have also been considered an "enforcement priority" by the EEOC.

Management Tip: The majority of EEOC charges are filed by an employee who has already resigned or been terminated. But in some cases, the charge will be filed by a current employee, perhaps naming the supervisor or manager as the "bad guy." A supervisor or manager named in an EEOC charge will understandably be hurt or angry. Many stop managing the employee at all out of fear. Both the "anger" and "avoidance" reactions are dangerous and can lead to retaliation claims. For these reasons, employers who have EEOC charges filed by current employees should consult with employment counsel in advance in the following circumstances, at least:

• An individual supervisor or manager is having difficulty controlling his or her emotions and needs a safe place to "vent."
• An individual supervisor or manager is afraid to engage with the employee.
• The employee is going to be subject to -- you guessed it -- materially adverse action, such as discipline, being placed on a performance improvement plan, or discharge.