~ Retaliation ~

1. ~ Retaliation ~

2. Trilogy of Title VII protections • - 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 opposedany 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” • Retaliation applies to all law and amendments that relate to civil rights >>> The legislation above incorporates: (1) an opposition clause covering complaints made relating to employer practices, and (2) a participation clause covering formal legal claims

3. Retaliation Claims

4. Crawford v. Metro. Gvt. of Nashville (2009) [What constitutes opposition of 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 satisfy the opposition clause (she had simply answered questions –a "non-active" complaint). The Supreme Court ruled for Crawford stating that the law protects witnesses who agree to answer questions as part of an investigation – counts as “opposition” 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."

5. Why is a Material Adverse Action?

6. ~ Ultimate Employment ~ • Defined by the 5th 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 5th circuit overturned on retaliation because no Ultimate Employment decision was shown before she resigned • Lederberger v. Stangler (1997) • Lederberger complained about a company policy (e.g., deference to African-American employees) • Company reassigned her a new staff • District court supported the retaliation charge (suffered loss of status/prestige) • The 8th circuit applied the Ultimate Employment standard and reversed • UE does NOTinclude hostile harassment conditions that interfere with the terms and conditions of employment unless that interference rises to the level of constructive discharge

7. ~ Adverse 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 3rd 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!). Co-worker’s behavior interfered with terms and conditions …

8. EEOC Deterrence • Would deter 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 • 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, 7th Circuit overturned, using EEOC Deterrence

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

10. 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

11. Prong 3: Establishing a Causal Connection A key element in most successful retaliation claims is a close temporal proximitybetween Prongs 1 (engaging in a protected activity) and 2 (taking a material adverse action) 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 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

12. Prior Knowledge of Employer 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

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

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

15. BNSF v. White (cont.) 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 • 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

16. 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

17. Total Charges 40,000 35,000 30,000 25,000 20,000 15,000 10,000 5,000 1,000 EEOC Claims by Discrimination Type in 2014 37,955 31,073 26,027 25,369 20,588 9,579 6,862 3,549 3,400 938 Retaliation Race Sex Disability Age National Sexual Religion Pregnancy Equal (Total) Origin Pay

18. 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

19. (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

20. Thompson v. North American Stainless (3rd 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

21. 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

22. Kasten v. Saint-Gobain Performance Plastics (2011) 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 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.

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

24. Supreme Court Decision 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. 

25. University of Texas Southwest Medical Center v. Nassar (2013) Background: Agreement to offer vacant staff physician posts to University faculty members Nassar: Allegations consisted of being harassed on the job by his supervisor (Levine) due to race and religion (e.g., “Middle Easterners are lazy”). Complained to his supervisor’s boss (Fritz) Nassar quit his university position but arranged to continue to work work as staff physician. Nassar’s supervisor’s boss (Fritz) objected to the Hospital’s job offer, which was then withdrawn Nassar Sued: 1) Constructive discharge 2) Retaliation (complaining about being harassed)

26. Mixed-motive claims 2000e-2 (m) Impermissible consideration of race, color, religion, sex, or national origin in employment practices Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. Retaliation NOT included in mixed-motive section (age isn’t either) As the dissent states, this section was added to CRA-91 to strengthen protections against discrimination. But, it’s being used by the majority to reduce the force of the ban on retaliation. Amendment to place the word “sole” before “because of such individual’s race ...” was rejected (Cong. Rec. 2728, 13837-13838 (1964)

27. University of Texas Southwest Medical Center v. Nassar (2013) • UNLAWFUL EMPLOYMENT PRACTICES • SEC. 2000e-2. [Section 703(a)] • Employer practices • It shall be an unlawful employment practice for an employer – • to fail or refuse to hire or to discharge any individual, or otherwise to discriminate • against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or • (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. So-called status-based claims Retaliation claims • OTHER UNLAWFUL EMPLOYMENT PRACTICES • SEC. 2000e-3. [Section 704(a)] • Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings • It shall be an unlawful employment practice 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 by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

28. University of Texas Southwest Medical Center v. Nassar (2013) • To win a case of retaliation, plaintiffs must show that retaliation was the sole (but-for) reason for the adverse employment action (not a motivating factor, or one of several). • Retaliation is in a different section in the CRA, and • Not mentioned in the mixed-motive section of CRA 1991 • A much stricter standard