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RETALIATION 101For EEO Managers
Barry Kramer
Deputy General Counsel
July 12, 2005
Finance Bldg, room 500
Retaliation The Hidden Liability Factor
Studies of federal discrimination and retaliation verdicts from 1991-1999 reflect that the median verdict in retaliation claims (in excess of $ 120,000) far exceeds the median of claims of discrimination alone. According to the latest report from the PHRC, retaliation is a claim in 86 of 162 complaints filed against Commonwealth agencies.
EEOC, Retaliation Claims, All Statutes enforced by EEOCFY 1992-2004
1992 1994 1996 1998 2000 2002 2003 2004
11,096 15,853 16,080 19, 114 21,613 22,768 22,690 22,740
15.3% 17. 4 20. 6 24.0 27.1 27.0 27.9 28.6
• Allegations of retaliation doubled from 1992 to 2002
• As a percentage of total claims, allegations of
retaliation almost doubled from 1992to 2004
A retaliation claim stands on its own even where the underlying discrimination claim is dismissed as long as the employee had a good faith basis for asserting the underlying claim of discrimination. Clark County v. Breeden, 532 U. S. 268 (2001)
A comprehensive set of employment policies must inform managers who are involved in discrimination allegations, whether as investigator, defendant or as manager, to avoid exacerbating an invariably volatile situation.
Awareness is key.
Statutory Retaliation
Every federal and state anti-discrimination statute prohibits retaliation against … whom?
These statutes include Title VII of the Civil Rights Act of 1964 (gender, race, color, religion, ethnic origin), the ADEA, FMLA, ADA, PHRA and Pa. Whistleblower Law. Commonwealth Management Directives 205.16 (Whistleblower Law) and 505.30 (prohibiting sexual harassment) also prohibit retaliation.
How to Establish a Prima Facie Claim of Statutory Retaliation?
What does prima facie mean and why should you care?
Three-part test
Employee must demonstrate:
(1) Employee was engaged in activity protected by the statute;
(2) Employer took an adverse employment action against the employee;
(3) Causal connection between employee’s participation in the protected activity and adverse employment action.
Robinson v. City of Pittsburgh, 120 F. 3d 1286, 1299
(3d Cir. 1997).
What is Protected Activity?
Statutes prohibit retaliation against persons who have opposed any unlawful employment act or practice or made a charge, testified, assisted, or participated in any manner in an investigation proceeding, or hearing regarding a complaint of discrimination.
Adverse Employment Action
Standards for determining if an employment action is “adverse”
• alters “employee’s compensation, terms, conditions or privileges of employment.”
• deprive him of employment opportunities
• adversely affect status as employee.
• significant or material change in employment status
• Whether adverse employment action is severe enough to be actionable is objective, not subjective, standard.
• Very case-specific inquiry
Adverse Employment Action
Courts look at a variety of factors to determine if there has been a material change in the terms or conditions of employment, including
• Direct economic harm, such as refusal to hire, termination, demotion in salary or rank, denial of promotion, reassignment to less desirable position or location, particularly where it affects employee’s compensation or long-term job prospects. Economic harm not necessarily prerequisite to claim.
• Changes in compensation, title, work schedule, work duties, or work location.
• Not everything that makes an employee unhappy qualifies as retaliation. Otherwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a retaliation claim. “Mere” bruised ego is not serious enough
Adverse Employment Actions?
• Court refused to grant defendant’s MSJ where detective assigned to road patrol after he filed EEOC complaint. Patrol seen as less desirable assignment.
• No adverse action where employee “demoted” from senior fashion photographer to merchandise photographer. Just a bruised ego.
• No adverse action where P laterally transferred from one location to another but no reduction in rank, salary, etc.
• What about:
Negative performance evaluation?
Written reprimand that remains in personnel file?
Oral reprimand?
Transfer to undesirable work shift?
Repeatedly turning up thermostat in employee’s office?
Negative job reference asAdverse Action?
Senate Bill 69, signed by Governor Rendell on June 15, provides that employer who discloses information about a former or current employee’s job performance to a prospective employer is immune from civil liability unless employee can prove that employer acted in bad faith.
• Only refers to employee’s “job performance.” Act’s immunity does not apply where employer discloses information about personal life, off-duty activities or character traits unrelated to job performance.
• Immunity does not apply to federal claims arising out of reference check. U.S. Supreme Court has held employer liable under federal anti-discrimination laws if employer , for discriminatory or retaliatory reasons, interferes with employee’s post-employment job opportunities in a job reference.
Causal Connection
If a plaintiff meets the first two elements of his retaliation claim, the court will next look at whether there was a causal connection between the protected activity and the adverse employment action.
• Employer must know of or suspect protected activity before adverse action occurred
• Although temporal closeness by itself is not usually decisive, the closer in time that the adverse employment action is taken to the occurrence of the protected activity, the stronger the suggestion of causation. No bright line rule on time.Two days lapse has inference of causation; four months probably does not.
• Other facts and circumstances are considered. Ongoing antagonism?• Once a plaintiff has established his prima facie case for retaliation, the
defendant must show a clear and reasonably specific legitimate, non-discriminatory reason for the adverse employment action. Document. Document. Document.
Claim for Retaliation for Constitutionally Protected Conduct under First Amendment
First Amendment to the U.S. Constitution guarantees all citizens, including public employees, protection from unwarranted interference with speech by government. If there is some employment action against a public employee because of protected activity, the employee may bring a retaliation claim against the government based on the statute and/or the Civil Rights Act (“section 1983”) if the claim is constitutionally-based.
Another 3-Part Test (but a different one)
Courts have established a three-part test for First Amendment retaliation claim by a public employee.
(1) Is speech/conduct constitutionally protected?
(2) Causation: substantially motivating factor in retaliatory action
(3) Government has opportunity to demonstrate it would have taken the same action even if the employee had not engaged in the protected conduct.
Query:What is present in the test for claims of retaliation for statutorily protected activity that is missing for an alleged constitutional violation?
Protected First Amendment Conduct
No requirement for adverse employment action. Instead, it is sufficient to show actual or potential chilling effect on the free-speech rights of the public employee.
Constitutionally Protected Speech or Conduct?
Plaintiff must prove that the activity is on a matter of public concern (whether the activity can fairly be considered as relating to a political, social or community concern. The court will consider content, form, and context of a given statement, as revealed by the whole record.
Courts continue to struggle over definition. Allegations of public corruption or wrongdoing Purely internal office matters and personal grievances
Balancing Test
After plaintiff has established that his speech is on a matter of public concern, the government must demonstrate that its interest as an employer in promoting the efficiency of the public services it performs outweighs the employee’s interest in making the speech. Governmental interests may include discipline by supervisors, harmony among co-workers, performance of the speaker’s duties, and regular operation of the enterprise.
Causation: What is the Motivating Factor in the Employment Action?
• Once plaintiff establishes that the speech or conduct is constitutionally protected, the plaintiff must establish that the speech was a substantial or motivating factor in the alleged retaliatory action.
• Even if employer’s action was motivated by retaliatory intent, the government has opportunity to demonstrate it would have taken the same action even if the employee had not engaged in the protected conduct.
• Claims of retaliation almost always get to the jury. Relatively easy to make a prima facie claim
