Avoiding Retaliation Claims Angie Rogers Webb & Eley, P.C. Post Office Box Montgomery, Alabama Telephone: (334)

Retaliation Part of Title VII of the Civil Rights Act Part of Title VII of the Civil Rights Act Opposition Clause: Employee opposed an unlawful employment practice Opposition Clause: Employee opposed an unlawful employment practice Participation Clause: Employee made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing Participation Clause: Employee made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing 2

Who is Protected Employee who opposed a practice or participated in a proceeding Employee who opposed a practice or participated in a proceeding Third parties (spouses, siblings, etc.) Third parties (spouses, siblings, etc.) 2011 U.S. Supreme Court case resolved question 2011 U.S. Supreme Court case resolved question Unanimously recognized claim for fiancee who was fired after plaintiff filed EEOC charge Unanimously recognized claim for fiancee who was fired after plaintiff filed EEOC charge Fiancee was within the “zone of interest” Fiancee was within the “zone of interest” 3

How Does Plaintiff Prove the Case? Direct Evidence Direct Evidence “I’m firing you because you filed an EEOC complaint.” “I’m firing you because you filed an EEOC complaint.” “That employee is a constant complainer.” “That employee is a constant complainer.” Just because the evidence is “direct,” it may still be insufficient to establish a causal connection Just because the evidence is “direct,” it may still be insufficient to establish a causal connection 4

How Does Plaintiff Prove the Case? Circumstantial Evidence Circumstantial Evidence Prima Facie Case Prima Facie Case Engaged in statutorily protected activity Engaged in statutorily protected activity Suffered a materially adverse employment action Suffered a materially adverse employment action Causal link between the protected activity and adverse employment action. Causal link between the protected activity and adverse employment action. Non-discriminatory reason for adverse action Non-discriminatory reason for adverse action Employee must prove that reason is pretextual Employee must prove that reason is pretextual 5

Protected Activities Extends beyond filing an EEOC charge or lawsuit Extends beyond filing an EEOC charge or lawsuit “Passive” opposition counts “Passive” opposition counts Mentions sexual harassment in an interview as part of another investigation Mentions sexual harassment in an interview as part of another investigation Employee “spoke out” in response to employer’s questions Employee “spoke out” in response to employer’s questions 6

Protected Activities: Opposition Clause Opposition Clause requires good-faith, reasonable belief that the employer violated discrimination laws Opposition Clause requires good-faith, reasonable belief that the employer violated discrimination laws Complaining that superior has problems working with women and then making frivolous accusations during investigation is not protected Complaining that superior has problems working with women and then making frivolous accusations during investigation is not protected Fired employee had no good-faith reasonable belief of violation Fired employee had no good-faith reasonable belief of violation 7

Protected Activities: Participation Clause Law is unclear about good-faith belief for participation clause Law is unclear about good-faith belief for participation clause Currently being litigated in 11 th Circuit Currently being litigated in 11 th Circuit 8

Adverse Employment Action Firing, demotion, pay decrease Firing, demotion, pay decrease Test is whether it would dissuade a reasonable employee from making a complaint Test is whether it would dissuade a reasonable employee from making a complaint 9

Adverse Employment Action Involuntary transfer may be adverse Involuntary transfer may be adverse Reduction in pay Reduction in pay Less prestige Less prestige Diminished responsibility. Diminished responsibility. De minimis inconvenience or alteration of responsibilities is insufficient because all transfers require new learning, new co- workers, and new responsibilities De minimis inconvenience or alteration of responsibilities is insufficient because all transfers require new learning, new co- workers, and new responsibilities 10

Adverse Employment Action Unfulfilled threats are not adverse employment actions Unfulfilled threats are not adverse employment actions Investigation does not insulate employees from otherwise terminable conduct Investigation does not insulate employees from otherwise terminable conduct Mixed-motive defense applies; employer would have taken same action anyway. Mixed-motive defense applies; employer would have taken same action anyway. No award of damages or order to hire, reinstate, or promote; declaratory and declaratory and injunctive relief only No award of damages or order to hire, reinstate, or promote; declaratory and declaratory and injunctive relief only 11

Causal Relationship Temporal proximity is a factor but suspicious timing alone is insufficient Temporal proximity is a factor but suspicious timing alone is insufficient Decision-maker must know about opposition or participation by that employee Decision-maker must know about opposition or participation by that employee Exception: Cat’s Paw Theory Exception: Cat’s Paw Theory 12

Cat’s Paw Theory Decision-maker was the “cat’s paw” of the supervisor with a discriminatory or retaliatory animus Decision-maker was the “cat’s paw” of the supervisor with a discriminatory or retaliatory animus 13

Protection from Cat’s Paw Theory Causal connection between supervisor’s discrimination or retaliation and the adverse employment action may be broken Causal connection between supervisor’s discrimination or retaliation and the adverse employment action may be broken Requires independent investigation by decision-maker and determination that the adverse employment action is entirely justified for reasons unrelated to supervisor’s original biased action Requires independent investigation by decision-maker and determination that the adverse employment action is entirely justified for reasons unrelated to supervisor’s original biased action 14

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