Mark Flynn, Specialized Legal Services
Many employers say that this happens on occasion or that they’ve heard of it happening at other organizations. The suspicion is that an employee facing potential discharge makes a bogus complaint of harassment or discrimination to threaten a claim of retaliation if or when the discharge comes later. Just recently the United States Supreme Court noted that concern in ruling that a “but-for” causation standard applies to unlawful retaliation claims under Title VII. University of Texas Southwestern Medical Center v. Nassar (U.S. 2013). That means the employee-turned-plaintiff must prove that the retaliation at issue would not have occurred absent the employer’s motive to retaliate for protected activity. Proving that retaliation was a motivating factor among other legitimate factors contributing to the adverse action is not enough. Status-based discrimination can still be proved under that mixed-motive theory. Timing and knowledge of protected activity under Title VII are most important to the causation analysis.
Retaliation charges now outpace all other claims of unlawful discrimination filed with the Equal Employment Opportunity Commission (EEOC). Retaliation claims look fairly simple in form: (1) protected activity; (2) adverse employment action; and (3) causal connection. Employers today need understand the parameters of protected activity and what constitutes a materially adverse action to support an unlawful retaliation claim under Title VII. It gets complicated because one form of protected activity (protected opposition) requires a reasonable, good faith belief that unlawful discrimination occurred and the other (protected participation) does not. Filing a charge of discrimination with the EEOC is the most common form of protected participation. Under protected opposition, just where the line is crossed from inappropriate conduct to unlawful discrimination becomes its own complicating factor.
What constitutes actionable retaliation is a broad standard. Essentially, anything that would dissuade a reasonable employee from making or supporting a charge of discrimination could be actionable retaliation. The standard is not limited to employment actions, like termination or demotion, and includes actions that cause harm outside of the workplace.
Given the importance of performing workplace investigations in response to employee complaints, and especially EEO complaints, now is a good time to revisit the nuances of unlawful retaliation under Title VII with an eye toward how retaliation concerns play out before, during, and after workplace investigations. When and how to communicate a prohibition against retaliation demands thoughtful consideration. Likewise, whether to set an expectation for participating employees to maintain confidentiality is its own balancing act. MSEC will explore all these issues on October 11. Please join us for a morning briefing session designed to clarify the current state of the law and provide practical advice for working through complaints, performance issues, and internal investigations. For immediate support call me at 303.223.5313 or email firstname.lastname@example.org