Deck 9: Retaliation

Question 1

To which laws and/or constitutional amendments does retaliation apply? Does a statute have to have an explicit retaliation provision for retaliation to be a valid claim? Explain.

Answer 1

Retaliation applies to all laws and constitutional amendments that protect civil rights That is, retaliation principles apply to every law covered in prior chapters of the 2010 Gutman et al text eg, ADA, Title VII, etc, and many more Several statutes have explicit retaliation provisions eg, Title VII; however, the Supreme Court has ruled that retaliation is a valid claim in laws without such provisions, including Sec 1981, Sec 1982, Title IX, and federal employees in the ADEA The Title VII provisions serve as the model for all other laws

Question 2

What are the three elements a plaintiff must establish to prevail in a retaliation claim? What is required to establish each prong?

Answer 2

Prong 1: Establishing a Protected ActivityUnder Section 704 a of Title VII, employees or applicants cannot be discriminated against for opposing any practice made unlawful by Title VII or for making a charge, testifying, or for assisting or participating in any manner in an investigation, proceeding, or hearing related to title VII Under anti-retaliation law, two types of claims are applicable Specifically these include 1 opposition claims in which the plaintiff has voiced complaints in relation to employer practices and 2 participation claims which cover employees former or current or applicants who have played some part in formal legal claims The first step necessary for filing a retaliation claim involves establishing that the plaintiff did, in fact, take part in one of the covered activities Although participation in a formal legal claim is relatively easy to demonstrate, establishment of an opposition claim can be less clear cut Recently, in direct opposition to two lower court findings, the Supreme Court expanded the opposition clause to "non-active" or solicited complaints To illustrate, in Crawford v Metro Government of Nashville 2009, the lower courts ruled that the plaintiff was not entitled to retaliation for termination following her participation in a series of interviews linked to an internal sexual harassment investigation because she had not actively voiced a complaint Supreme Court concluded that the opposition clause did pertain to solicited complaints, meaning that organizations cannot retaliate againstemployees who report discrimination only after being directly asked about it Finally, it is important to note that, due to the Court‟s finding in Thompson v North American Stainless 2009, third-party retaliation claims are not covered under title VII To elaborate, if an individual is in some way affiliated ie, a spouse, relative, or friend with an employee who has taken part in a formal legal claim or is eligible for protection from retaliation under the opposition clause of Title VII, the affiliated person currently is not protected as a result of this association
Prong 2: Establishing a Materially Adverse ActionAfter engaging in protected activity ie, complaining about an employer practice or filing a formal claim, the plaintiff suffers a materially adverse action There has been debate in the courts over what constitutes a materially adverse action There are three standards recognized by the courts for determining an adverse action:a The first is ultimate employment, which means that materially adverse actions are limited to ultimate employment decisions such as hiring, granting leave, promotion, discharge, and compensation Ultimate employment decisions are tantamount to tangible employment actions seen in sexual harassment charges Ultimate employment decisions do 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 decisions are employer friendly because of this they are very restrictive and hard to prove in courtb The second standard for defining materially adverse action is adverse employment These are retaliatory acts that interfere with terms, conditions, and privileges of employment, but do not require a tangible employment consequence To substantially interfere with the terms and conditions of employment, the retaliatory act must be illegal under Sec 703 a of Title VII Here, hostile harassment that is sufficiently severe to interfere with the work performance is materially adverse unlike ultimate employment, where there must be a tangible employment action While not as stringent as ultimate employment, adverse employment is still considered to be employer friendly because it still is difficult for employees to prove in courtc The third type of materially adverse action is EEOC deterrence, which are retaliatory acts that would deter a reasonable person from engaging in a protected activity EEOC deterrence does not require an ultimate employment decision or interference with terms, conditions, or privileges of employment EEOC deterrence is employee friendly because the employee only has to prove that any retaliatory action caused an adverse effect eg, losing flextime after complaining about an employer practice or would have deterred them from engaging in a protected act The Supreme Court agreed that EEOC deterrence is the standard for determining a materially adverse action
Prong 3: Establishing a Causal ConnectionAssuming that Prong 1 and Prong 2 have been established, there must be a causal connection established between Prong 1 and Prong 2 Retaliation claims can establish a causal connection between Prong 1 and Prong 2 by using either direct or indirect methodsa The indirect method uses the McDonnell-Burdine scenario in which the employer articulates a nondiscriminatory reason for the alleged retaliatory act and the plaintiff then must prove that the reason is pretext The plaintiff uses circumstantial evidence to prove pretext by pointing out similarly situated employees that were treated more favorably than the plaintiff during the interval for which the retaliation was claimed For example, in Mickelson v New York Life 2006, the plaintiff took leave, came back and requested to work part-time and was denied, while New York Life allowed another employee Hairgrove to work part-time Mickelson then filed a claim using the indirect method The employer stated that Hairgrove was given the part-time schedule because she was returning from worker‟s compensation injury The court found the employer‟s reasoning to be pretextb Another method that a plaintiff can use to establish a causal connection between Prong 1 and Prong 2 is the direct method This method can be used when a there are no similarly situated employees or b the plaintiff, by choice, leads with strong direct or indirect evidence not method of retaliation If a prima facie case is established, the defendant is forced to prove that it would have made the challenged employment decision in spite of the evidence This is similar to the mixed-motive scenario in which the plaintiff proves that an illegal motive was a motivating factor in an employment decision, the defendant proves they would have made the decision in spite of the illegal motive, and the plaintiff proves pretext Acase that illustrates using the direct method was in 2006 in Jensen v Potter, where Jensen presented a "mosaic" of evidence in which her co-workers routinely berated her with insults and physical threatsAn important element in establishing Prong 3 is the close temporal proximity between Prong 1 and Prong 2 The courts seem to support that 3 and 4 months between the protected behavior and the challenged retaliatory act is too long Richmond v Oneok, 1997; Hughes v Derwinski, 1992 If there are long intervals, the plaintiff must present further evidence of a causal connection Additionally, and more obviously, the employer must actually know about the employee‟s opposition or participation Without knowing about the opposition or participation, the employee couldn‟t possibly have made an adverse action based on participating in a protected activity

Question 3

What influence did (1997) have on the following?
a) The definition of employee
b) The rate of retaliation claims
c) EEOC policy guidance

Answer 3

a. In the case Robinson v. Shell Oil, the Supreme Court extended the definition of employee, to include both current employees and former employees. That is, Robinson, extended retaliation claims to former employees.
b. It was presumed by many observers that Robinson increased the rate of subsequent retaliation claims. A closer inspection shows that the causal connection is questionable because retaliation claims were already on the rise prior to the ruling. Based on the statistics from EEOC, the overwhelming majority of retaliation claims were associated with Title VII.
c. After Robinson, the EEOC updated the Compliance Manual to indicate, in no uncertain terms, that it rejects the Ultimate Employment and Adverse Employment standards, and accepts the EEOC Deterrence Standard. On May 20, 1998, the EEOC issued guidance on retaliation in Section 8 of its Compliance Manual, which clearly established EEOC deterrence as the basis for defining a materially adverse action.

Question 4

What are the three key points made by the Supreme Court majority (Breyer) in their

Question 5

What are the six recommendations for preventing and correcting potential retaliation?

Question 6

What can employers do to foster a climate that denounces retaliatory behavior?

Question 7

What are the "opposition" and "participation" clauses in the Title VII definition of retaliation?

Question 8

What are the three prongs for establishing a valid claim of retaliation?

Question 9

What was the principle ruling in

Question 10

What were subsequent impacts of the Robinson ruling on the incidence of retaliation claims and EEOC Policy Guidance?

Question 11

What were the three theories of "materially adverse" in the lower courts prior to BNSF v.

Question 12

What were the lower court rulings in this case?

Question 13

What was the Supreme Court ruling in this case?

Question 14

Based on the BNSF ruling, what would change, if anything, in major pre-BNSF lower court rulings?

Question 15

Based on the BNSF ruling, what did change, if anything, in major post-BNSF lower court rulings?

Question 16

What six recommendations are made for complying with the retaliation rulings discussed in this chapter?

Question 17

What additional considerations for practice were made on the case law discussed in this chapter?