By Lorene D. Park, J.D. Would you be dissuaded from reporting discrimination if you knew that after your complaint you would get harassed, moved to a “shack,” denied air-conditioning in the summer, or accused of wrongdoing yourself? Many courts think so, and often send these types of retaliation cases to the jury. However, the retaliatory act has to be one that would dissuade a reasonable worker from reporting discrimination because, as the Seventh Circuit recently explained, Title VII “does not protect against petty slights, minor annoyances, and bad manners.” Even so, supervisors and others who have the power to impact an employee’s working conditions can be creative in expressing retaliatory animus. The 13-year grudge. In one case, a former executive VP who chose voluntary retirement over being fired in the wake of a sexual harassment suit, returned to the company 13 years later and immediately started retaliating against a subordinate VP who had been interviewed in the prior suit. He took the subordinate’s secretary as his own; presented a video depicting the subordinate from the torso down but with his head cut off; and demoted him two levels (despite his long tenure and stellar performance). The executive VP also said things making it clear he harbored a grudge over the circumstances of his prior “early retirement.” Despite the 13-year gap, a federal court found enough evidence of a causal link to go to trial (Pace v. Alfa Mutual Insurance Co.). First chance to retaliate. As happened in Pace, employers often argue that long periods of time between the protected activity and the retaliatory response make it impossible for an employee to show a causal link between the two. However, the temporal gap means little if this was the first chance a decisionmaker had to retaliate against the employee who engaged in protected activity, particularly if there is other evidence indicating that the decisionmaker is carrying a grudge. As explained by a federal court in North Carolina, the “mere passage of time” does not preclude a retaliation claim where an employer takes the first opportunity it has to retaliate. In the North Carolina case, seven months after a home healthcare worker filed an EEOC charge, her former employer called her new employer and several of her clients to accuse the employee of stealing and of Medicaid fraud (Johnson v. Lemonds). Newly enforced policy. Courts also find significant any change in how an employer enforces a policy following a protected activity. For example, an employee had never been asked for a doctor’s note for each absence and had received positive performance reviews, but after she filed an EEOC charge, she was told to provide a note for each absence, had her attempt to provide such a note rejected, and was fired two days after signing a settlement of her EEOC complaint. A federal court in Indiana found this to be a convincing mosaic of evidence supporting her retaliation claim, which will go to trial (Rodriguez v. Duneland School Corp.). Likewise, a federal court in Michigan found that an employer’s having skipped a disciplinary step before terminating an employee who had recently returned from FMLA leave raised triable issues on her FMLA retaliation claim (Perry v. Covenant Medical Center, Inc.). Put in a “shack.” Demotions and terminations are typical adverse actions that support lawsuits, but there are also cases involving less common actions. For example, a federal court in Tennessee sent a retaliation claim to trial based on evidence that, after an employee complained of an inadequate harassment investigation, he was transferred to an unheated building with no restroom facilities, no mats or carpet on which to stand, and with only a pair of unpadded folding chairs (Pittington v. Great Smoky Mountain Lumberjack Feud, LLC). Similarly, transfers to unfavorable locations or shifts can be adverse actions. For example, a federal court in Florida found that a male correctional officer’s transfer to an unfavorable night shift was enough, by itself, to support his claim that this was retaliation for his sexual harassment complaint (Peterson v. Corrections Corp. of America). In another case, a federal court in New York found a railroad station employee’s claim supported by evidence that, after he took leave for a heart condition, he was disciplined and placed in an extremely hot booth with an inoperable air conditioning unit that the employer declined to fix (McAllister v. Metro Transit Authority). Denied the means to do the job. Likewise, denying the equipment or other tools necessary to do a job can be actionable. In one case, a car dealership employee who reported sexual harassment was subsequently denied access to websites that she needed to access in order to perform her duties and a federal court in Michigan found triable questions on whether this adversely affected her ability to perform the essential functions her job (Worthington v. Brighton Ford, Inc.). “Relentless campaign” to destroy career. The creation of a hostile work environment also can be considered an adverse action supporting a retaliation claim. For example, a federal court in D.C. sent a HUD attorney’s retaliatory hostile work environment claim to trial based on a series of actions taken by a female supervisor who the employee had complained favored younger male attorneys. The supervisor allegedly accused the employee of bringing cupcakes embedded with nails to the office (she was investigated though she had been on leave at the time); accused her of hacking the supervisor’s computer; revoked her telecommuting privileges; made hostile remarks; put her on a performance improvement plan; and suspended her (Roman v. Castro). Escalation of hostility. In another case, a federal case in New York, after an employee lodged discrimination complaints, her supervisor allegedly yelled at her, docked her pay for being only a few minutes late, tapped her phone to monitor her conversations, moved her office furniture so she was facing the wall, and threatened disciplinary action if her phone etiquette was “not to his liking.” The court found that the supervisor’s conduct could well dissuade a reasonable worker from making or supporting a charge of discrimination (Ingrassia v. Health & Hospital Corp.). It doesn’t have to be an ultimate employment action. As these cases suggest, adverse actions take many forms in retaliation suits, including: trumped-up investigations, harassment, threats, the denial of necessary tools or equipment, and more. It is perhaps understandable then, that retaliation charges filed with the EEOC have doubled since 1998 and in FY2015 represented the most frequently filed charge—39,757 charges made up 45 percent of private sector charges. Recently, the agency announced that, in light of the significant number of court rulings on retaliation claims since 1998, it is seeking input on a proposed enforcement guidance that would replace the prior version. In the meantime, additional information on retaliation claims and what actions support such claims can be found in the EEOC’s compliance manual. As might be expected given the above examples, the agency notes that adverse actions need not qualify as “ultimate employment actions” (like termination) or materially affect the terms or conditions of employment to constitute retaliation. Employers should advise supervisors of this important distinction when it comes to retaliation claims (as opposed to discrimination claims).
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