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1. Did R official admit that it undertook the adverse action because of the protected activity?
2. Did R official express bias against CP based on the protected activity? If so, is there evidence linking that statement of bias to the adverse action?
- Such a link would be established if, for example, the statement was made by the decision-maker at the time of the challengedaction.
If there is direct evidence that retaliation was a motive for the adverse action, "cause" should be found. Evidence as to any additional legitimate motive would be relevant only to relief, under a mixed-motives analysis.
1. Is there evidence raising an inference that retaliation was the cause of the adverse action?
- Such an inference is raised if the adverse action took place shortly after the protected activity and if the decision-maker was aware of the protected activity before undertaking the adverse action.
- If there was a long period of time between the protected activity and the adverse action, determine whether there is other evidence raising an inference that the cause of the adverse action was retaliation.
2. Has R produced evidence of a legitimate, nondiscriminatory reason for the adverse action?
3. Is R' s explanation a pretext designed to hide retaliation?
- Did R treat similarly situated employees who did not engage in protected activity differently from CP?
- Did R subject CP to heightened scrutiny after s/he engaged in protected activity?
If, on the basis of all of the evidence, the investigatoris persuaded that retaliation was the true reason for the adverse action, then "cause" should be found.
Congratulations! You're now booked up on Item 0-3 of Chapter 8: Retaliation from the EEOC's Compliance Manual!
You might need to reference it during your pursuit of justice.
