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EEOC Compliance Manual on Retaliation
The U.S. Equal Employment Opportunity Commission
EEOC DIRECTIVES TRANSMITTAL
Number 915.003
Date 5/20/98
SUBJECT: EEOC COMPLIANCE MANUAL
PURPOSE:
This transmittal covers the issuance of Section 8 of the
new Compliance Manual on "Retaliation". The section
provides guidance and instructions for investigating and
analyzing claims of retaliation under the statutes
enforced by the EEOC.
EFFECTIVE DATE: Upon receipt
DISTRIBUTION: EEOC Compliance Manual holders
OBSOLETE DATA: Section 614 of Compliance Manual, Volume 2
FILING INSTRUCTIONS: This
is the first section issued as part of the new
Compliance Manual. Section 614 of the existing Compliance
Manual should be discarded.
/s/
---------------------------
Paul M. Igasaki
Chairman
SECTION 8: RETALIATION
TABLE OF CONTENTS
(Note: Page numbering applies only to
printed version as distributed by
EEOC, or to PDF version as available on
the EEOC web site,
http://www.eeoc.gov/.)
CHARGE-PROCESSING OUTLINE...........................................iii
8-I. INTRODUCTION..................................................8-1
A.
OVERVIEW ...............................................8-1
B.
BASIS FOR FILING A CHARGE...............................8-2
8-II. ELEMENTS OF A RETALIATION CLAIM...............................8-3
A.
OVERVIEW ...............................................8-3
B.
PROTECTED ACTIVITY: OPPOSITION.........................8-3
1. Definition........................................8-3
2. Examples of Opposition............................8-4
3. Standards Governing Application of the Opposition
Clause............................................8-7
a. Manner of Opposition Must Be Reasonable
..8-7
b. Opposition Need Only Be Based on
Reasonable
and Good Faith Belief ....................8-8
c. Person Claiming Retaliation Need
Not Be the
Person Who Engaged in Opposition .........8-9
d. Practices Opposed Need Not Have
Been Engaged
in by the Named Respondent ...............8-9
C.
PROTECTED ACTIVITY: PARTICIPATION .....................8-9
1. Definition........................................8-9
2. Participation Is Protected Regardless of Whether
the Allegations in the Original Charge Were Valid
or Reasonable ....................................8-9
3. Person Claiming Retaliation Need Not Be the
Person
Who Engaged in Participation.....................8-10
4. The Practices Challenged in Prior or Pending
Statutory Proceedings Need Not Have Been Engaged
in by the Named Respondent ......................8-10
D.
ADVERSE ACTION ........................................8-11
1. General Types of Adverse Actions.................8-11
2. Adverse Actions Can Occur After the Employment
Relationship Between the Charging Party and
Respondent Has Ended.............................8-12
3. Adverse Actions Need Not Qualify as "Ultimate
Employment Action" or Materially Affect the Terms
or Conditions of Employment to Constitute
Retaliation .....................................8-13
E.
PROOF OF CAUSAL CONNECTION ............................8-15
1. Direct Evidence .................................8-16
2. Circumstantial Evidence .........................8-17
8-III. SPECIAL
REMEDIES ISSUES ...............................8-20
A.
TEMPORARY OR PRELIMINARY RELIEF........................8-20
B.
COMPENSATORY AND PUNITIVE DAMAGES......................8-21
1. Availability of Damages for Retaliation Under
ADEA
and EPA .........................................8-21
2. Appropriateness of Punitive Damages .............8-21
CHARGE-PROCESSING OUTLINE
In processing a charge involving an allegation
of retaliation,
consider the following issues (for a detailed
discussion of each
issue, see accompanying chapter at referenced
pages):
There are three essential elements of a retaliation claim:
1) protected activity
-- opposition to discrimination or participation
in the statutory complaint process
2) adverse action
3) causal connection
between the protected activity and the adverse
action
I. Protected Activity
A. Did CP oppose discrimination? .....................3
1. Did the charging party (CP) explicitly
or
implicitly communicate to the respondent (R) or
another covered entity a belief that its activity
constituted unlawful discrimination under Title
VII, the ADA, the ADEA, or the EPA?
- If the protest was broad
or ambiguous, would
CP's protest reasonably have been interpreted
as opposition to such unlawful discrimination?
Did someone closely associated with CP oppose
discrimination?
2. Was the manner of opposition reasonable?
Was the
manner of opposition so disruptive that it
significantly interfered with R's legitimate
business concerns?
- If the manner of opposition was not
reasonable, CP is not protected under the
anti-retaliation clauses.
3. Did CP have a reasonable and good faith belief
that
the opposed practice violated the anti-
discrimination laws?
- If so, CP is protected against retaliation,
even if s/he was mistaken about the
unlawfulness of the challenged practices.
- If not, CP is not protected under the anti-
retaliation clauses.
B. Did CP participate in the statutory complaint process?... 9
Did CP or someone closely associated with CP file a
charge, or testify, assist, or participate in any manner
in an investigation, proceeding, hearing, or lawsuit
under the statutes enforced by the EEOC?
- If so, CP is protected against retaliation
regardless of the validity or reasonableness of the
original allegation of discrimination.
- CP is protected against retaliation by
a respondent
for participating in statutory complaint
proceedings even if that complaint involved a
different covered entity.
II. Adverse Action
Did R subject CP to any kind of adverse treatment? ..... 11
- Adverse actions undertaken after CP's
employment
relationship with R ended, such as negative job
references, can be challenged.
- Although trivial annoyances are not actionable,
more significant retaliatory treatment that is
reasonably likely to deter protected activity is
unlawful. There is no requirement that the adverse
action materially affect the terms, conditions, or
privileges of employment.
III. Causal Connection
A. Is there direct evidence that retaliation
was a motive
for the adverse action? .......................... 15
1. Did R official admit that it undertook the
adverse
action because of the protected activity?
2. Did R official express bias against CP based
on the
protected activity? If so, is there evidence
linking that statement of bias to the adverse
action?
- Such a link would be established if, for
example, the statement was made by the
decision-maker at the time of the challenged
action.
If there is direct evidence that retaliation was a motive
for the adverse action, "cause" should be found. Evidence
as to any additional legitimate motive would be relevant
only to relief, under a mixed-motives analysis.
B. Is there circumstantial evidence that
retaliation was the
true reason for the adverse action? ...............16
1. Is there evidence raising an inference that
retaliation was the cause of the adverse action?
- Such an inference is raised if the adverse
action took place shortly after the protected
activity and if the decision-maker was aware
of the protected activity before undertaking
the adverse action.
- If there was a long period of time between
the
protected activity and the adverse action,
determine whether there is other evidence
raising an inference that the cause of the
adverse action was retaliation.
2. Has R produced evidence of a legitimate,
nondiscriminatory reason for the adverse action?
3. Is R's explanation a pretext designed
to hide
retaliation?
- Did R treat similarly situated employees
who
did not engage in protected activity
differently from CP?
- Did R subject CP to heightened scrutiny
after
s/he engaged in protected activity?
If, on the basis of all of the evidence, the investigator
is persuaded that retaliation was the true reason for the
adverse action, then "cause" should be found.
IV. Special Remedies Issues
A. Is it appropriate to seek temporary or preliminary
relief
pending final disposition of the charge?.............19
1. Is there a substantial likelihood that the
challenged action will be found to constitute
unlawful retaliation?
2. Will the retaliation cause irreparable harm
to CP
and/or the EEOC?
- Will CP likely incur irreparable harm
beyond
financial hardship because of the retaliation?
- If the retaliation appears to be based
on CP's
filing of a prior EEOC charge, will that
retaliation likely cause irreparable harm to
EEOC's ability to investigate CP's original
charge of discrimination?
If there is a substantial likelihood that the challenged
action will constitute retaliation and if that
retaliation will cause irreparable harm to CP and/or the
EEOC, contact the Regional Attorney about pursuing
temporary or preliminary relief.
B. Are compensatory and punitive damages
available and
appropriate?........................................ 20
Compensatory and punitive damages are available for
retaliation claims under all of the statutes enforced by
the EEOC, including the ADEA and the EPA. Compensatory
and punitive damages for retaliation claims under the
ADEA and the EPA are not subject to statutory caps.
Punitive damages often are appropriate in retaliation
claims under any of the statutes enforced by the EEOC.
8-I INTRODUCTION
A. OVERVIEW
Title VII of the Civil Rights Act of 1964\1, the Age Discrimination
in Employment Act\2, the Americans with
Disabilities Act\3, and the Equal
Pay Act\4 prohibit retaliation by an employer,
employment agency, or labor
organization because an individual has
engaged in protected activity.
Protected activity consists of the following:
----------------------------
PROTECTED ACTIVITY
(1)
opposing a practice made unlawful by one of the employment
discrimination statutes (the "opposition" clause); or
(2)
filing a charge, testifying, assisting, or participating in
any manner in an investigation, proceeding, or hearing under
the applicable statute (the "participation" clause).
----------------------------
This chapter reaffirms the Commission's policy of ensuring that
individuals who oppose unlawful employment
discrimination, participate in
employment discrimination proceedings,
or otherwise assert their rights
under the laws enforced by the Commission
are protected against
retaliation. Voluntary compliance
with and effective enforcement of the
anti-discrimination statutes depend in
large part on the initiative of
individuals to oppose employment practices
that they reasonably believe to
be unlawful, and to file charges of discrimination.
If retaliation for
such activities were permitted to go unremedied,
it would have a chilling
effect upon the willingness of individuals
to speak out against employment
discrimination or to participate in the
EEOC's administrative process or
other employment discrimination proceedings.
The Commission can sue for temporary or preliminary relief before
completing its processing of a retaliation
charge if the charging party or
the Commission will likely suffer irreparable
harm because of the
retaliation. The investigator should
contact the Regional Attorney early
in the investigation if it appears that
it may be appropriate to seek such
relief. See Section 8-III A.
for guidance on the standards for seeking
temporary or preliminary relief.
B. BASIS FOR FILING A CHARGE
A charging party who alleges retaliation under Title VII, the ADA,
the ADEA, or the EPA need not also allege
that he was treated differently
because of race, religion, sex, national
origin, age, or disability\6. A
charging party who alleges retaliation
in violation of the ADA need not be
a qualified individual with a disability\7.
Similarly, a charging party
who alleges retaliation for protesting
discrimination against persons in
the protected age group need not be in
the protected age group in order to
bring an ADEA claim.\8
A charging party can challenge retaliation by a respondent even
if
the retaliation occurred after their employment
relationship ended\9.
S/he can also challenge retaliation by
a respondent based on his/her
protected activity involving a different
employer, or based on protected
activity by someone closely related to
or associated with the charging
party.\10
A charging party can bring an ADA retaliation claim against an
individual supervisor, as well as an employer.
This is because Section
503(a) of the ADA makes it unlawful for
a "person" to retaliate against an
individual for engaging in protected activity.\11
8-II. ELEMENTS OF A RETALIATION CLAIM
A. OVERVIEW
There are three essential elements of a retaliation claim:
----------------------------
ELEMENTS OF RETALIATION
1) opposition to discrimination or participation in covered
proceedings
2) adverse action
3) causal connection between the protected activity and the
adverse action
----------------------------
B. PROTECTED ACTIVITY: OPPOSITION
1. Definition
The anti-retaliation provisions make it unlawful to discriminate
against an individual because s/he has
opposed any practice made unlawful
under the employment discrimination statutes\12.
This protection applies
if an individual explicitly or implicitly
communicates to his or her
employer or other covered entity a belief
that its activity constitutes a
form of employment discrimination that
is covered by any of the statutes
enforced by the EEOC.
While Title VII and the ADEA prohibit retaliation based on
opposition to a practice made unlawful
by those statutes, the ADA
prohibits retaliation based on opposition
to "any act or practice made
unlawful by this chapter." The referenced
chapter prohibits not only
disability-based employment discrimination,
but also disability
discrimination in state and local government
services, public
accommodations, commercial facilities,
and telecommunications. Thus, the
ADA prohibits retaliation for opposing
not just allegedly discriminatory
employment practices but also practices
made unlawful by the other titles
of the statute.
2. Examples of Opposition
* Threatening
to file a charge or other formal complaint
alleging discrimination
Threatening to file a complaint with the Commission, a state
fair employment practices agency, union, court, or any other
entity that receives complaints relating to discrimination is
a form of opposition.
----------------------------
Example - CP tells her manager that if he fails to raise
her salary to that of a male coworker who performs the
same job, she will file a lawsuit under either the federal
Equal Pay Act or under her state's parallel law. This
statement constitutes "opposition."
----------------------------
* Complaining
to anyone about alleged discrimination against
oneself or others
A complaint or protest about alleged employment discrimination
to a manager, union official, co-worker, company EEO official,
attorney, newspaper reporter, Congressperson, or anyone else
constitutes opposition. Opposition may be nonverbal,
such as
picketing or engaging in a production slow-down. Furthermore,
a complaint on behalf of another, or by an employee's
representative, rather than by the employee herself,
constitutes protected opposition by both the person who makes
the complaint and the person on behalf of whom the complaint
is made.
A complaint about an employment practice constitutes protected
opposition only if the individual explicitly or implicitly
communicates a belief that the practice constitutes unlawful
employment discrimination\13. Because individuals often may
not
know the specific requirements of the anti-discrimination laws
enforced by the EEOC, they may make broad or ambiguous
complaints of unfair treatment. Such a protest is protected
opposition if the complaint would reasonably have been
interpreted as opposition to employment discrimination.
----------------------------
Example 1 - CP calls the President of R's parent company to
protest religious discrimination by R. CP's protest
constitutes "opposition."
Example 2 - CP complains to co-workers about harassment of a
disabled employee by a supervisor. This complaint
constitutes "opposition."
Example 3 - CP complains to her foreman about graffiti in
her workplace that is derogatory toward women. Although CP
does not specify that she believes the graffiti creates a
hostile work environment based on sex, her complaint
reasonably would have been interpreted by the foreman as
opposition to sex discrimination, due to the sex-based
content of the graffiti. Her complaint therefore constitutes
"opposition."
Example 4 - CP (African-American) requests a wage increase
from R, arguing that he deserves to get paid a higher salary.
He does not state or suggest a belief that he is being
subjected to wage discrimination based on race. There also
is no basis to conclude that R would reasonably have
interpreted his complaint as opposition to race
discrimination because the challenged unfairness could have
been based on any of several reasons. CP's protest therefore
does not constitute protected "opposition."
----------------------------
* Refusing
to obey an order because of a reasonable belief that
it is discriminatory
Refusal to obey an order constitutes protected opposition if
the individual reasonably believes that the order requires him
or her to carry out unlawful employment discrimination.
----------------------------
Example - CP works for an employment agency. His
manager
instructs him not to refer any African-Americans to a
particular client, based on the client's request. CP refuses
to obey the order and refers an African-American applicant
to that client. CP's action constitutes "opposition."
----------------------------
Refusal to obey an order also constitutes protected opposition
if the individual reasonably believes that the order makes
discrimination a term or condition of employment. For
example, in one case a court recognized that a correction
officer's refusal to cooperate with the defendant's practice
of allowing white but not black inmates to shower after work
shifts constituted protected opposition. Even if the inmates
were not "employees," the plaintiff could show that his
enforcement of the policy made race discrimination a term or
condition of his employment. Thus, his refusal to obey the
order constituted opposition to an unlawful employment
practice.\14
* Requesting
reasonable accommodation or religious accommodation
A request for reasonable accommodation of a disability
constitutes protected activity under Section 503 of the ADA.
Although a person making such a request might not literally
"oppose" discrimination or "participate" in the administrative
or judicial complaint process, s/he is protected against
retaliation for making the request. As one court stated,
It would seem anomalous . . . to think Congress
intended no retaliation protection for employees
who request a reasonable accommodation unless they
also file a formal charge. This would leave
employees unprotected if an employer granted the
accommodation and shortly thereafter terminated the
employee in retaliation\15.
By the same rationale, persons requesting religious
accommodation under Title VII are protected against
retaliation for making such requests.
3. Standards Governing Application of the Opposition Clause
Although the opposition clause in each of the EEO statutes is
broad, it does not protect every protest
against job discrimination. The
following principles apply:
a. Manner of Opposition Must Be Reasonable
The manner in which an individual protests perceived employment
discrimination must be reasonable in order
for the anti- retaliation
provisions to apply. In applying
a "reasonableness" standard, courts and
the Commission balance the right of individuals
to oppose employment
discrimination and the public's interest
in enforcement of the EEO laws
against an employer's need for a stable
and productive work environment.
Public criticism of alleged discrimination may be a reasonable form
of opposition. Courts have protected
an employee's right to inform an
employer's customers about the employer's
alleged discrimination, as well
as the right to engage in peaceful picketing
to oppose allegedly
discriminatory employment practices.\16
On the other hand, courts have found that the following activities
were not reasonable and thus not protected:
searching and photocopying
confidential documents relating to alleged
ADEA discrimination and showing
them to co-workers\17; making an
overwhelming number of complaints based
on unsupported allegations and bypassing
the chain of command in bringing
the complaints\18; and badgering
a subordinate employee to give a witness
statement in support of an EEOC charge
and attempting to coerce her to
change her statement.\19 Similarly, unlawful
activities, such as acts or
threats of violence to life or property,
are not protected.
If an employee's protests against allegedly discriminatory
employment practices interfere with job
performance to the extent that
they render him or her ineffective in the
job, the retaliation provisions
do not immunize the worker from appropriate
discipline or discharge\20.
Opposition to perceived discrimination
does not serve as license for the
employee to neglect job duties.
b. Opposition Need Only Be Based on Reasonable and
Good Faith Belief
A person is protected against retaliation for opposing perceived
discrimination if s/he had a reasonable
and good faith belief that the
opposed practices were unlawful.
Thus, it is well settled that a
violation of the retaliation provision
can be found whether or not the
challenged practice ultimately is found
to be unlawful\21. As one court
has stated, requiring a finding of actual
illegality would "undermine[]
Title VII's central purpose, the elimination
of employment discrimination
by informal means; destroy[] one
of the chief means of achieving that
purpose, the frank and non-disruptive exchange
of ideas between employers
and employees; and serve[] no redeeming
statutory or policy purposes of
its own."\22
----------------------------
Example 1 - CP complains to her office manager that her
supervisor failed to promote her because of her gender.
(She believes that sex discrimination occurred because she
was qualified for the promotion and the supervisor promoted
a male instead.) CP has engaged in protected opposition
regardless of whether the promotion decision was in fact
discriminatory because she had a reasonable and good faith
belief that discrimination occurred.
Example 2 - Same as above, except the job sought by CP was
in accounting and required a CPA license, which CP lacked
and the selectee had. CP knew that it was necessary to have
a CPA license to perform this job. CP has not engaged in
protected opposition because she did not have a reasonable
and good faith belief that she was rejected because of sex
discrimination.
----------------------------
c. Person Claiming Retaliation Need Not Be the Person
Who
Engaged in Opposition
Title VII, the ADEA, the EPA, and the ADA prohibit retaliation
against someone so closely related to or
associated with the person
exercising his or her statutory rights
that it would discourage that
person from pursuing those rights\23.
For example, it is unlawful to
retaliate against an employee because his
son, who is also an employee,
opposed allegedly unlawful employment practices.
Retaliation against a
close relative of an individual who opposed
discrimination can be
challenged by both the individual who engaged
in protected activity and
the relative, where both are employees.
See Section 8-II C.3. for
discussion of similar principle under "participation"
clause.
d. Practices Opposed Need Not Have Been Engaged in by
the
Named Respondent
There is no requirement that the entity charged with retaliation
be
the same as the entity whose allegedly
discriminatory practices were
opposed by the charging party. For
example, a violation would be found if
a respondent refused to hire the charging
party because it was aware that
she opposed her previous employer's allegedly
discriminatory practices.
C. PROTECTED ACTIVITY: PARTICIPATION
1. Definition
The anti-retaliation provisions make it unlawful to discriminate
against any individual because s/he has
made a charge, testified,
assisted, or participated in any manner
in an investigation, proceeding,
hearing, or litigation under Title VII,
the ADEA, the EPA, or the ADA.
This protection applies to individuals
challenging employment
discrimination under the statutes enforced
by EEOC in EEOC proceedings, in
state administrative or court proceedings,
as well as in federal court
proceedings, and to individuals who testify
or otherwise participate in
such proceedings\24. Protection under
the participation clause extends to
those who file untimely charges.
In the federal sector, once a federal
employee initiates contact with an EEO
counselor, (s)he is engaging in
"participation."\25
2. Participation Is Protected Regardless of Whether
the
Allegations in the Original Charge Were Valid or
Reasonable
The anti-discrimination statutes do not limit or condition in any
way the protection against retaliation
for participating in the charge
process. While the opposition clause
applies only to those who protest
practices that they reasonably and in good
faith believe are unlawful, the
participation clause applies to all individuals
who participate in the
statutory complaint process. Thus,
courts have consistently held that a
respondent is liable for retaliating against
an individual for filing an
EEOC charge regardless of the validity
or reasonableness of the charge\26.
To permit an employer to retaliate against
a charging party based on its
unilateral determination that the charge
was unreasonable or otherwise
unjustified would chill the rights of all
individuals protected by the
anti-discrimination statutes.
3. Person Claiming Retaliation Need Not Be the
Person Who
Engaged in Participation
The retaliation provisions of Title VII, the ADEA, the EPA, and
the
ADA prohibit retaliation against someone
so closely related to or
associated with the person exercising his
or her statutory rights that it
would discourage or prevent the person
from pursuing those rights. For
example, it would be unlawful for a respondent
to retaliate against an
employee because his or her spouse, who
is also an employee, filed an EEOC
charge\27. Both spouses, in such circumstances,
could bring retaliation
claims.
4. The Practices Challenged in Prior or Pending
Statutory
Proceedings Need Not Have Been Engaged in by the Named
Respondent
An individual is protected against retaliation for participation
in
employment discrimination proceedings even
if those proceedings involved a
different entity\28. For example,
a violation would be found if a
respondent refused to hire the charging
party because it was aware that
she filed an EEOC charge against her former
employer.
D. ADVERSE ACTION
1. General Types of Adverse Actions
The most obvious types of retaliation are denial of promotion,
refusal to hire, denial of job benefits,
demotion, suspension, and
discharge. Other types of adverse
actions include threats, reprimands,
negative evaluations, harassment, or other
adverse treatment.
Suspending or limiting access to an internal grievance
procedure also constitutes an "adverse
action." For example, in
EEOC v. Board of Governors of State Colleges
& Universities\29, a
university's collective bargaining agreement
provided for a
specific internal grievance procedure leading
to arbitration. The
agreement further provided that this procedure
could be terminated
if the employee sought resolution in any
other forum, such as the
EEOC. The Seventh Circuit ruled that
termination of the grievance
process constituted an adverse employment
action in violation of
the anti-retaliation clause of the ADEA\30.
2. Adverse Actions Can Occur After the Employment
Relationship Between the Charging Party and Respondent
Has Ended
In Robinson v. Shell Oil Company,\31 the Supreme Court unanimously
held that Title VII prohibits respondents
from retaliating against former
employees as well as current employees
for participating in any proceeding
under Title VII or opposing any practice
made unlawful by that Act. The
plaintiff in Robinson alleged that his
former employer gave him a negative
job reference in retaliation for his having
filed an EEOC charge against
it. Some courts previously had held
that former employees could not
challenge retaliation that occurred after
their employment had ended
because Title VII, the ADEA, and the EPA
prohibit retaliation against "any
employee."\32 However, the Supreme Court
stated that coverage of
post-employment retaliation is more consistent
with the broader context of
the statute and with the statutory purpose
of maintaining unfettered
access to the statute's remedial mechanisms.
The Court's holding applies
to each of the statutes enforced by the
EEOC because of the similar
language and common purpose of the anti-retaliation
provisions.
Examples of post-employment retaliation include actions that are
designed to interfere with the individual's
prospects for employment, such
as giving an unjustified negative job reference,
refusing to provide a job
reference, and informing an individual's
prospective employer about the
individual's protected activity.\33 However,
a negative job reference
about an individual who engaged in protected
activity does not constitute
unlawful retaliation unless the reference
was based on a retaliatory
motive. The truthfulness of the information
in the reference may serve as
a defense unless there is proof of pretext,
such as evidence that the
former employer routinely declines to offer
information about its former
employees' job performance and violated
that policy with regard to an
individual who engaged in protected activity.
See Section 8-II E. below.
Retaliatory acts designed to interfere with an individual's
prospects for employment are unlawful regardless
of whether they cause a
prospective employer to refrain from hiring
the individual\34. As the
Third Circuit stated, "an employer who
retaliates cannot escape liability
merely because the retaliation falls short
of its intended result."\35
However, the fact that the reference did
not affect the individual's job
prospects may affect the relief that is
due.
3. Adverse Actions Need Not Qualify as "Ultimate
Employment
Actions" or Materially Affect the Terms or Conditions of
Employment to Constitute Retaliation
Some courts have held that the retaliation provisions apply only
to
retaliation that takes the form of ultimate
employment actions\36. Others
have construed the provisions more broadly,
but have required that the
action materially affect the terms, conditions,
or privileges of
employment.\37
The Commission disagrees with those decisions and concludes that
such constructions are unduly restrictive.
The statutory retaliation
clauses prohibit 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.
As the Ninth Circuit has
stated, the degree of harm suffered by
the individual "goes to the issue
of damages, not liability."\38
----------------------------
Example 1 - CP filed a charge alleging that he was racially
harassed by his supervisor and co-workers. After learning
about the charge, CP's manager asked two employees to keep
CP under surveillance and report back about his activities.
The surveillance constitutes an "adverse action" that is
likely to deter protected activity, and is unlawful if it was
conducted because of CP's protected activity.
Example 2 - CP filed a charge alleging that she was denied a
promotion because of her gender. One week later, her
supervisor invited a few employees out to lunch. CP believed
that the reason he excluded her was because of her EEOC
charge. Even if the supervisor chose not to invite CP
because of her charge, this would not constitute unlawful
retaliation because it is not reasonably likely to deter
protected activity.
Example 3 - Same as Example 2, except that CP's supervisor
invites all employees in CP's unit to regular weekly lunches.
The supervisor excluded CP from these lunches after she
filed the sex discrimination charge. If CP was excluded
because of her charge, this would constitute unlawful
retaliation since it could reasonably deter CP or others from
engaging in protected activity.
----------------------------
The Commission's position is based on statutory language and policy
considerations. The anti-retaliation
provisions are exceptionally broad.
They make it unlawful "to discriminate"
against an individual because of
his or her protected activity. This
is in contrast to the general
anti-discrimination provisions which make
it unlawful to discriminate with
respect to an individual's "terms, conditions,
or privileges of
employment." The retaliation provisions
set no qualifiers on the term "to
discriminate," and therefore prohibit any
discrimination that is
reasonably likely to deter protected activity\39.
They do not restrict
the actions that can be challenged to those
that affect
the terms and conditions of employment\40.
Thus, a violation will
be found if an employer retaliates against
a worker for engaging in
protected activity through threats\41,
harassment in or out of the
workplace, or any other adverse treatment
that is reasonably likely
to deter protected activity by that individual
or other employees.\42
This broad view of coverage accords with the primary purpose of
the
anti-retaliation provisions, which is to
"[m]aintain[] unfettered access
to statutory remedial mechanisms."\43 Regardless
of the degree or quality
of harm to the particular complainant,
retaliation harms the public
interest by deterring others from filing
a charge\44. An interpretation
of Title VII that permits some forms of
retaliation to go unpunished would
undermine the effectiveness of the EEO
statutes and conflict with the
language and purpose of the anti-retaliation
provisions.
E. PROOF OF CAUSAL CONNECTION
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 discha