TBD | Item 2-E | Retaliation

In order to establish unlawful retaliation, there must be proof that the respondent took an adverse action because the charging party engaged in protected activity. Proof of this retaliatory motive can be through direct or circumstantial evidence. The evidentiary framework that applies to other types of discrimination claims also applies to retaliation claims.

1. Direct Evidence

If there is credible direct evidence that retaliation was a motive for the challenged action, "cause" should be found. Evidence as to any legitimate motive for the challenged action would be relevant only to relief, not to liability.⁴⁵

Direct evidence of a retaliatory motive is any written or verbal statement by a respondent official that s/he undertook the challenged action because the charging party engaged in protected activity. Such evidence also includes a written or oral statement by a respondent official that on its face demonstrates a bias toward the charging party based on his or her protected activity, along with evidence linking that bias to the adverse action. Such a link could be shown if the statement was made by the decision-maker at the time of the adverse action.⁴⁶ Direct evidence of retaliation is rare.

Example - CP filed a charge against Respondent A, alleging that her supervisor sexually harassed and constructively discharged her. CP subsequently sued A and reached a settlement. When CP applied for a new job with Respondent B, she received a conditional offer subject to a reference check. When B called CP's former supervisor at A Co. for a reference, the supervisor said that CP was a "troublemaker," started a sex harassment lawsuit, and was not anyone B "would want to get mixed up with." B did not hire CP. She suspected that her former supervisor gave her a negative reference and filed retaliation charges against A and B. The EEOC investigator discovered notes memorializing the phone conversation between A and B. These notes are direct evidence of retaliation by A because they prove on their face that A told B about CP's protected activity and that A gave CP a negative reference because of that protected activity. These notes are not direct evidence of retaliation by B because they do not directly prove that B rejected CP because of her protected activity. However, the fact that B gave CP a conditional job offer and then decided not to hire her after learning about her protected activity is strong circumstantial evidence of B's retaliation.

(See Section 8-II E.2. below.)

2. Circumstantial Evidence

The most common method of proving that retaliation was the reason for an adverse action is through circumstantial evidence. A violation is established if there is circumstantial evidence raising an inference of retaliation and if the respondent fails to produce evidence of a legitimate, non-retaliatory reason for the challenged action, or if the reason advanced by the respondent is a pretext to hide the retaliatory motive.

CIRCUMSTANTIAL EVIDENCE OF RETALIATION

1. Evidence raises inference that retaliation was the cause of the challenged action;

2. Respondent produces evidence of a legitimate, non-retaliatory reason for the challenged action; and

3. Complainant proves that the reason advanced by the respondent is a pretext to hide the retaliatory motive.

An initial inference of retaliation arises where there is proof that the protected activity and the adverse action were related.⁴⁷ Typically, the link is demonstrated by evidence that:

(1) the adverse action occurred shortly after the protected activity, and

(2) the person who undertook the adverse action was aware of the complainant's protected activity before taking the action.

An inference of retaliation may arise even if the time period between the protected activity and the adverse action was long, if there is other evidence that raises an inference of retaliation. For example, in Shirley v. Chrysler First, Inc.⁴⁸, a 14-month interval between the plaintiff's filing of an EEOC charge and her termination did not conclusively disprove retaliation where the plaintiff's manager mentioned the EEOC charge at least twice a week during the interim and termination occurred just two months after the EEOC dismissed her charge.⁴⁹

Common non-retaliatory reasons offered by respondents for challenged actions include:

poor job performance;
inadequate qualifications for the position sought;
violation of work rules or insubordination; and
with regard to negative job references, truthfulness of the information in the reference.

For example, in one case, the plaintiff claimed that she was discharged for retaliatory reasons but the employer produced unrebutted evidence that she was discharged because of her excessive absenteeism.⁵⁰ In another case, the plaintiff alleged that his former employer's negative job reference was retaliatory, but the defendant established that the evaluation was based on the former supervisor's personal observation of the plaintiff during his employment and contemporary business records documenting those observations.⁵¹

Even if the respondent produces evidence of a legitimate, nondiscriminatory reason for the challenged action, a violation will still be found if this explanation is a pretext designed to hide the true retaliatory motive. Typically, pretext is proved through evidence that the respondent treated the complainant differently from similarly situated employees or that the respondent's explanation for the adverse action is not believable. Pretext can also be shown if the respondent subjected the charging party's work performance to heightened scrutiny after she engaged in protected activity.⁵²

Example 1- CP alleges that R denied her a promotion because she opposed the under-representation of women in management jobs and was therefore viewed as a "troublemaker." The promotion went to another female employee. R asserts that the selectee was better qualified for the job because she had a Masters in Business Administration, while CP only had a college degree. The EEOC investigator finds that this explanation is pretextual because CP has significantly greater experience working at R Company and experience has always been the most important criterion for selection for management jobs.

Example 2 - CP alleges that R gave him a negative job reference because he had filed an EEOC charge. R produces evidence that its negative statements to CP's prospective employer were honest assessments of CP's job performance. There is no proof of pretext, and therefore the investigator finds no retaliation.

Example 3 - Same as Example 2, except there is evidence that R routinely declines to offer information about former employees' job performance. R fails to offer a credible explanation for why it violated this policy with regard to CP. Therefore, pretext is found.

⁴⁵ The basis for finding "cause" whenever there is credible direct evidence of a retaliatory motive is Section 107 of the 1991 Civil Rights Act, 42 U.S.C. §§2000e-2(m) and 2000e-5(g)(2)(B). Section 107 provides that an unlawful employment practice is established whenever race, color, religion, sex, or national origin was a motivating factor, even though other factors also motivated the practice. It further provides that a complainant who makes such a showing can obtain declaratory relief, injunctive relief, and attorneys fees but no damages or reinstatement if the respondent proves that it would have taken the same action even absent the discrimination. Section 107 partially overrules Price Waterhouse v. Hopkins, 490 U.S. 228(1989), which held that a respondent can avoid liability for intentional discrimination in mixed-motives cases if it can prove that it would have made the same decision in the absence of the discrimination.

Some courts have ruled that Section 107 does not apply to retaliation claims. See, e.g., Woodson v. Scott Paper, 109 F.3d 913(3d Cir.), cert, denied, 118 S. Ct. 299(1997). Those courts apply Price Waterhouse v. Hopkins, and therefore absolve the employer of liability for proven retaliation if the establishes that it would have made the same decision in the absence of retaliation. Other courts have applied Section 107 to retaliation claims. See, e.g., Merritt v. Dillard Paper Co., 120 F.3d 1181, 1191(11th Cir. 1997).

The Commission concludes that Section 107 applies to retaliation. Courts have long held that the evidentiary framework for proving employment discrimination based on race, sex, or other protected class status also applies to claims of discrimination based on retaliation. Furthermore, an interpretation of Section 107 that permits proven retaliation to go unpunished undermines the purpose of the anti-retaliation provisions of maintaining unfettered access to the statutory remedial mechanism.
⁴⁶ For example, in Merritt v. Dillard Paper Company, 120 F.3d 1181(11th Cir. 1997), the plaintiff testified in a co-worker's Title VII action about sexual harassment in the workplace. Shortly after the case was settled, the president of the company fired the plaintiff. The court found direct evidence of retaliation based on the president's statement to the plaintiff, "[y]our deposition was the most damning to Dillard 's case, and you no longer have a place here at Dillard Paper Company."
⁴⁷ Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.), cert , denied, 474 U.S. 981 (1985).
⁴⁸ 970 F.2d 39 (5th Cir. 1992).
⁴⁹ See Kachmar v. Sunguard Data Systems, 109 F.3d 173 (3d Cir. 1997) (district court erroneously dismissed plaintiff's retaliation claim because termination occurred nearly one year after her protected activity; when there may be reasons why adverse action was not taken immediately, absence of immediacy does not disprove causation).
⁵⁰ Miller v. Vesta, Inc., 946 F. Supp. 697 (E.D. Wis. 1996).
⁵¹ Fields v. Phillips School of Business & Tech., 870 F. Supp. 149 (W.D. Tex.), aff'd mem., 59 F.3d 1242(5th Cir. 1994).
⁵² See, e.g., Hossaini v. Western Missouri Medical Center, 97 F.3d 1085 (8th Cir. 1996) (reasonable person could infer that defendant's explanation for plaintiff's discharge was pretextual where defendant launched investigation into allegedly improper conduct by plaintiff shortly after she engaged in protected activity).

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2-E | PROOF OF CAUSAL CONNECTION

1. Direct Evidence

2. Circumstantial Evidence

CIRCUMSTANTIAL EVIDENCE OF RETALIATION

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2-E | PROOF OF CAUSAL CONNECTION

1. Direct Evidence

2. Circumstantial Evidence

CIRCUMSTANTIAL EVIDENCE OF RETALIATION

Footnotes

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TBD 1.037