Employment & Labor Insider

Did I remember to mention "timing"?

Retaliation claims have been the hottest at the U.S. Equal Employment Opportunity Commission for many years. Part of that is because every law that the EEOC enforces has an anti-retaliation provision. (Just about every other law, too.) But the other part is that employees who believe they have been discriminated against are likely to complain about it. And then to allege retaliation based on those complaints.

For this reason, one of the most important parts of a retaliation case -- if not the most important -- is timing. No matter which side you're on.

Time is on my side -- yes, it is

Let’s assume that a 60-year-old employee – we’ll call him Milton – got demoted on Monday by his 35-year-old boss. On the Wednesday after the demotion, Milton told Human Resources that he was being discriminated against because of his age. On Friday, he complained again, this time saying that he was demoted in retaliation for the age complaint he had made on Wednesday.

Even if the age discrimination claim is valid (and we don’t know that yet), does Milton have a valid retaliation claim based on the facts I’ve given you?

Of course not.

A retaliation claim under federal law generally requires

• That an employee engage in legally protected activity,
• That the employer subjects him to what the law calls “adverse employment action” (discipline, demotion, pay cut, termination, etc.), and
• That there is a “causal connection” between the protected activity and the adverse employment action.

That last, in non-legalese, means that there has to be some evidence that the employer took the adverse action because of the employee’s legally protected activity.

Going back to Milton, we see that he was demoted on Monday and didn’t make his first protected complaint until two days later.

Employer wins, right? How could the demotion have been retaliatory when Milton hadn’t even engaged in any protected activity at the time he was demoted?

If I could turn back the hands of time . . .

Now let’s reverse the days of the week. Let’s say Milton went to HR on Monday to complain that his boss was discriminating against him. Then, on Wednesday, the boss demoted Milton.

Milton has a plausible retaliation claim now, doesn’t he -- at least, on its face? You bet.

The timing makes all the difference.

If only all retaliation cases were as simple as these two examples.

Let's enter the real world now. What if it turns out that the boss had been talking to HR for the past month about demoting Milton? And they decided the week before that they were going to demote Milton on the following Wednesday? (And, of course, all of this is documented in emails and Teams chats, so there's proof.) And Milton was sensing some bad vibes, so on Monday he made the age discrimination complaint? And the boss went ahead with the demotion on Wednesday anyway?

Even though the demotion was not communicated until after Milton made his age complaint, the employer should win because the decision to demote Milton was made earlier and therefore couldn’t have been “because of” it. In legalese, there is no "causal connection" between Milton's protected activity and his demotion. Thus, no retaliation.

Just in time! A real live court decision!

The U.S. Court of Appeals for the Fourth Circuit came out this week with a decision that is a doozy for showing the significance of timing in retaliation cases.

A college faculty member (we’ll call her “Dr. Muffy”) had a side appointment with the college that gave her $10,000 a year in addition to her faculty salary. Her original boss thought she was great and gave her good reviews. Her new boss came in and wasn’t as impressed but gave her a decent initial review based mostly on what the old boss had said.

But after giving that initial “benefit of the doubt” review, the new boss determined that there were real issues with Dr. Muffy's performance of the side job. She met with Dr. Muffy and suggested that she voluntarily give up the side job (while staying on the faculty). Dr. Muffy said no. The new boss accepted that but continued to have concerns, and also received a lot of complaints about Dr. Muffy.

A few months after that, Dr. Muffy made some allegations of race discrimination.

The negative assessments and feedback continued. And a few months after the discrimination allegations, the new boss "fired" Dr. Muffy from the side position while leaving her on the faculty.

Dr. Muffy sued, alleging that she was retaliated against because of her race discrimination complaints.

What do you think happened, based on the timing?

A federal court in Virginia granted summary judgment to the college, saying that the new boss was noting concerns, and suggested that Dr. Muffy give up the side job, long before Dr. Muffy made her race discrimination complaints.

Dr. Muffy appealed the dismissal of her case, and in this week’s decision, two out of three judges on a Fourth Circuit panel agreed with the lower court. According to the majority, timing was everything (or almost everything), and because the performance concerns pre-dated (and continued after) Dr. Muffy's legally protected activity, the retaliation claim was properly dismissed.

But here’s what the dissenting judge had to say: Sure, that’s true, but let’s look at the “before and after” this way. Before the race discrimination complaints, concerns about her performance had been noted, and she was given the option to resign from the side job but wasn’t required to do it. When she said no, the new boss accepted her decision and took no further action for months. Then Dr. Muffy made her race discrimination complaints. Then the college required her to give up the side job.

I agree with the majority on this one, but I do think the dissent makes a valid alternative point on the timing.

A timely tip for employers

Employers, if you have a problem employee and are talking about taking some sort of "adverse employment action," be sure that your discussions and decision are documented when made. (Emails and chats count as "documentation.")

I predict there is at least a 50-50 chance that your problem employee will sense a bad "vibe" after you've made your decision and will make a legally protected complaint in an effort to protect herself.

But if you can prove that you had already made the decision before the protected activity occurred, you should be fine moving ahead. (Do always consult with your employment counsel, though, before you act.)

Can’t tell the judges without a scorecard! This decision was refreshingly non-partisan. The majority opinion was written by Judge Pamela Harris (an Obama appointee), joined by Judge DeAndrea Benjamin (a Biden appointee). The dissenter was Judge James Wynn (an Obama appointee). The district court judge, Henry Hudson, is a George W. Bush appointee.