~ Retaliation ~

- 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” T rilogy of Title VII protections >>> The legislation above incorporates: (1) an opposition clause covering complaints made relating to employer practices, and (2) a participation clause covering formal legal claims

Three Prongs in Retaliation Claims Phase 1Plaintiff engages in protected activity by (1) complaining about an employer practice or (2) filing a formal claim of discrimination Phase 2After engaging in protected activity, plaintiff suffers a materially adverse action Phase 3Plaintiff must demonstrate a causal connection between alleged materially adverse action and the protected activity Retaliation Claims

Crawford v. Metro. Gvt. of Nashville (2009) [What constitutes engaging/participating in 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 actively engaged in a protected behavior (she had simply answered questions). The Supreme Court ruled for Crawford stating that the law protects witnesses who agree to participate in investigations 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."

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 Why is a Material Adverse Action?

– Defined by the 5 th 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 5 th circuit overturned on retaliation because no Ultimate Employment decision was shown before she resigned – Lederberger v. Stangler (1997) Lederberger complained about a company policy Company reassigned her a new staff District court supported the retaliation charge The 8 th 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 ~ Ultimate 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 3 rd 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!) ~ Adverse Employment ~

Would dissuade 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 EEOC Deterrence 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, 7 th Circuit overturned, using EEOC Deterrence

The 7 th 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 9 th 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." Washington v. Illinois Dept. of Revenue (cont.) 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) 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 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

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 Prior Knowledge of Employer

--- Indirect Method (not same as indirect & direct evidence ) McDonnell–Burdine scenario Employer articulates a non-discriminatory reason for the alleged retaliatory act Plaintiff must prove that the articulation is pretext – Proof of pretext consists of circumstantial evidence that similarly situated employees were treated more favorably than the plaintiff during the interval for which retaliation was claimed Michelson V. New York Life (2006) Mickelson filed EPA claim and later took FMLA leave Upon return, requested part time work to transition back to full time --- denied (NYL; work required full time employee) Similarly situation employee (marketing consultant) was allowed to work part time – Mickelson was denied and proved pretext Causal Connection (cont.)

--- Direct method Used when no similarly situated employees OR The plaintiff, by choice, leads with strong direct or indirect evidence of retaliation Defendant is forced to prove it would have made the same challenged employment decision in spite of the evidence (e.g., follows mixed-motive method in Desert Palace v. Costa, 2003) Examples: Jensen v. Potter and Washington v. Illinois Dept. of Revenue – both plaintiffs presented strong, documented evidence of retaliation (threats, insults) - Companies could not prove they would have made same decision without EEO claims being made Causal Connection (cont.)

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” Robinson v. Shell Oil (1997) [Who is protected?]

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) Lower courts generally favored the Adverse Employment standard (e.g., interference with terms and conditions of employment) 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

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 BNSF v. White (cont.) 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 40,000 35,000 30,000 25,000 20,000 15,000 10,000 5,000 1,000 Retaliation Race Sex Disability Age Sexual National Pregnancy Religion Equal (Total) Harassment Origin Title VII & Pay Title VII & FEPA ) FEPA) 33,512 EEOC Claims by Discrimination Type in , ,364 10, ,811 1,082 Total EEOC Charges By Year 30,356

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 (3 rd 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) 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. 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

~ Supreme Court Decision ~ What does “ filed any complaint ” mean? Formal, written form needed? 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? 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)

Enforcement needs of this related statute argue for a broad interpretation The Court determined that Congress intended the anti- retaliation 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. Supreme Court Decision