Was there retaliation?

Retaliation is forbidden

Title VII and all state anti-discrimination statutes forbid retaliation against any individual who opposes an unlawful employment practice or who participates in any manner in any governmental investigation or proceeding under Title VII (or, for state law, any state fair employment practices statute).

Adverse employment action

One of the issues to evaluate for a retaliation case is whether the employee has suffered an adverse employment action.

A 2006 Supreme Court case (Burlington Northern and Santa Fe Ry. Co. v. White) resolved a split in the Circuit Courts of Appeal as to whether employer conduct falling short of an “ultimate employment decision” (failure to hire, demotion, termination) could constitute an adverse employment action. The Supreme Court answered that question in the affirmative and held that the anti-retaliation provision of Title VII was not restricted to “ultimate employment decisions.” Rather, the Supreme Court held that the anti-retaliation provision covered any employer actions that would have been “materially adverse” to a reasonable employee or applicant.

While admonishing that Title VII’s anti-retaliation provision would not protect an employee from “normally petty slights, minor annoyances, and simple lack of good manners,” the Supreme Court recognized that retaliation claims will often necessitate a factually intensive analysis. The court said:

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. . . . A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.

Evidence of retaliatory intent

Under these laws, another important issue for a retaliation case is proof of the employer’s motive for engaging in the adverse employment action because a retaliation case requires retaliatory intent.

Direct evidence

The Supreme Court has not yet directly addressed the question of what constitutes direct evidence of discrimination. The Circuit Courts of Appeal have adopted varying definitions of direct evidence.

All of the Courts of Appeal would hold that direct evidence exists in the following situations:

  1. The decision-maker told the plaintiff that he or she was not being promoted because he or she had filed a charge of discrimination with the EEOC.
  2. The employer adopted a written policy forbidding the hiring of Asians and an Asian plaintiff was not hired as a result of the policy.
  3. The decision-maker told the plaintiff that she was not being promoted because she had refused to begin a sexual relationship with him.

Some of the Courts of Appeal would find direct evidence of discrimination where the decision-maker evidenced a discriminatory animus toward the class to which the plaintiff belongs. For example, some of the Courts of Appeal would find direct evidence of discrimination in the following situations:

  1. The decision-maker who promoted a man to the position of Vice-President over a woman had previously stated that he did not believe that women were qualified to hold the position of Vice-President.
  2. The president of the company informed his subordinates that he did not want them to hire any African-Americans and one of the subordinates subsequently hired a Caucasian over an African-American.
  3. The decision-maker who fired an employee shortly after the employee went over the decision-maker’s head to report sexual harassment had previously told people that they would find themselves out of a job if they ever broke the chain of command and bypassed him with any complaints.

Indirect evidence

Because direct evidence of retaliation is so rare, case evaluations usually have to focus on whether there is evidence that will prove retaliation indirectly by inference. This means that the employee has to establish a prima facie case of discrimination and rebut the employer’s alleged legitimate, non-discriminatory reason for its actions.

A prima facie case may be established by demonstrating:

  • The employee opposed an unlawful employment practice or engaged in other protected activity.
  • A subsequent adverse employment action was taken against the employee.
  • Similarly situated employees (who did not oppose the unlawful employment practice) were not subjected to the adverse employment action.

The timing of adverse employment action may be important. The closer the adverse employment action occurs after the employee’s protected activity, the more likely a court will draw an inference that the action was retaliatory.