Fall 2012 - Volume IV - Issue 3

Retaliation Claims in Employment Cases: Both More and Less Than Meets the Eye

By Barbara T. Lindemann and David D. Kadue

Co-authors: Workplace Harassment Law (Chapter 16 addresses retaliation.)

In recent years courts have expanded the scope of the retaliation claim, but they have also accommodated a countervailing trend—a growing judicial recognition that retaliation law permits employers to discipline employees for complaining in bad faith, even when such employees do so in official proceedings.

I. THE BROAD AVAILABILITY OF RETALIATION CLAIMS
A. Introduction

A retaliation claim often accompanies other discrimination claims, such as a claim for workplace harassment. An employer thus can face both an employee's charge of harassment and a charge that the employer retaliated against the employee for reporting the harassment.

A retaliation claim can succeed even where the underlying discrimination claim fails. This result can occur for various reasons— factual, psychological, and legal.

  • Factually, it is possible that the employer committed no underlying unlawful employment practice but still decided to retaliate against an employee for mistakenly reporting discrimination.
  • Psychologically, jurors who would be reluctant to impute discriminatory motives to management can find it plausible that management was nonetheless motivated to punish an employee for misreporting employer conduct.
  • Legally, judicial interpretations have made a retaliation claim easier to prove than other claims of discrimination.

The especially favored status of retaliation claims helps to explain why the number of annual EEOC filings alleging retaliation have roughly doubled since 2000, while overall EEOC filings increased by less than one-third.1 During FY 2011, retaliation, alleged in 37.4% of all EEOC filings, became the most prevalent Title VII charge (with race and gender charges being the second and third most prevalent).2

B. Implying Statutory Authority for Retaliation Claims

Courts have reached beyond express statutory language in order to find a legal basis for retaliation claims. The Supreme Court, although generally reluctant to imply a private right of action, has repeatedly authorized lawsuits for retaliation even when the express statutory language offers no clear support. Thus, in 2005, in Jackson v. Birmingham Board of Education,3 the Court held that Title IX, which bans gender discrimination in education, by implication also forbids retaliation.4 The Court's majority disagreed with Justice Thomas, who noted in dissent that Title IX's express language, which simply forbids sex discrimination, does not address retaliation.5 The Court thus permitted a girl's high school basketball coach to sue the school board for retaliation against him for protesting unequal access to sports equipment and facilities.

In 2008, the Supreme Court twice recognized statutory retaliation claims, notwithstanding the lack of express support in the statutory language. In CBOCS West Inc. v. Humphries,6 the Court held that employees can sue for retaliation under Section 1981 of the Civil Rights Act of 1866 (forbidding race discrimination in contractual relationships), even though Section 1981 does not mention retaliation. The Court's ruling permitted an assistant restaurant manager to pursue a claim that the employing restaurant had retaliated against him for complaining about the discriminatory mistreatment of a coworker. Justice Thomas, again dissenting, noted that the plain text of the statute did not support the Court's conclusion.7

Similarly, in Gomez-Perez v. Potter,8 the Supreme Court held that federal employees can sue for retaliation under the Age Discrimination in Employment Act (ADEA), even though the ADEA does not expressly authorize a retaliation claim. The Court found an implied right of action for federal employees that would parallel the express right of action that the ADEA has created for private-sector employees. Chief Justice Roberts argued in dissent that the ADEA language differentiating between private and federal employees reflected a congressional intent to leave federal workers without retaliation claims.9 The Supreme Court's ruling permitted a Postal Service employee to pursue a claim that, after she complained of age discrimination, her managers retaliated by decreasing her hours and falsely accusing her of gender harassment.

The Supreme Court's congenial treatment of retaliation claims continued in 2011, in interpreting the Fair Labor Standard Act (FLSA). In Kasten v. Saint-Gobain Performance Plastics,10 the Supreme Court held that employees can base FLSA retaliation claims on oral complaints, even though the FLSA retaliation provision refers only to those employees who have "filed" a complaint. Justice Scalia argued in dissent that the term "filed" applies only to official submissions to a government agency.11 The Supreme Court's ruling permitted a factory worker to pursue a claim that the company unlawfully fired him for orally complaining that a company time clock failed to record compensable time.

C. Expanding the Class of Persons Authorized to Claim Retaliation

Just as the Supreme Court has interpreted statutes to recognize a right to sue for retaliation even in the absence of express authorizing language, the Court has expansively interpreted the statutory language to enable non-employees and even non-complainants to sue for retaliation. Individuals who are able to sue for retaliation thus include the following:

  • Former employees opposing discrimination. In Robinson v. Shell Oil Co.,12 the plaintiff alleged that his former employer gave him a negative job reference in retaliation for his filing an EEOC charge. The Fourth Circuit, en banc, rejected his claim because Title VII prohibits retaliation only against "employees or applicants" (not former employees). But the Supreme Court unanimously reversed, concluding that "employees" in this context should be read broadly to encompass former employees, to further the retaliation provision's "primary purpose of maintaining unfettered access to Title VII's remedial mechanisms."13
  • Witnesses to discrimination. In 2009, in Crawford v. Metropolitan Government of Nashville & Davidson County,14 the Supreme Court held that Title VII protects those who, although not themselves bringing a discrimination charge, reported discrimination in answering questions during an internal investigation. The plaintiff, Vicky Crawford, alleged that her employer fired her for providing information during the employer's investigation of a coworker's harassment complaint. The Sixth Circuit rejected her claim, reasoning that merely answering questions was not an act opposing unlawful discrimination. The Supreme Court disagreed, concluding that one can oppose discrimination not only by making a complaint but also by "an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee."15
  • Employees closely associated with employees who have reported discrimination. In 2011, in Thompson v. North American Stainless, NP,16 the Supreme Court further expanded the group of potential retaliation plaintiffs. Eric Thompson alleged that his employer fired him because a coworker, his fiancée, had filed an EEOC charge.17 An en banc Sixth Circuit decision rejected Thompson's claim, reasoning that retaliation law protects only those employees who have themselves engaged in protected activity.18 The Supreme Court disagreed, holding that Thompson—although not himself a complainant—had standing to sue as an employee who fell within the zone of interests that Title VII protects.19 The Court reasoned that Title VII broadly covers employer conduct that could dissuade a reasonable worker (such as Thompson's fiancée) from engaging in protected conduct, and that employer reprisal against the worker's close associate (here, Thompson, the complaining worker's fiancé) would constitute such a dissuasion.20
II. ELEMENTS OF LIABILITY BROADLY CONSTRUED
A. Overview

Because retaliation constitutes a special category of discrimination— discrimination against an individual for opposing unlawful employment discrimination21 —one might suppose that proving traditional discrimination (because of race, religion, gender, or national origin) and proving retaliatory discrimination (because of opposition to discrimination) would involve essentially the same elements. Yet, while the elements of proof are superficially similar,22 courts have made the elements of proof easier to establish in the context of retaliation.

B. Broad Interpretation of Adverse Employment Action for Purposes of Retaliation Claims

A discrimination plaintiff generally must prove that the alleged adverse employment action effected an adverse change in the terms or conditions of employment. In Burlington Northern & Santa Fe Ry. Co. v. White,23 however, the Supreme Court extended the retaliation provision beyond the scope of traditional discrimination provisions, extending coverage not merely to "ultimate employment decisions" but to all "employer actions that could well dissuade a reasonable worker from making or supporting a charge of discrimination."24 The Supreme Court justified this broader scope on the differing purposes of the traditional discrimination provisions and the retaliation provision:

The antidiscrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. ... The antiretaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the act's basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provisions seeks to prevent harm to individuals based on what they do, i.e., their conduct.25

The Supreme Court held that the retaliation provision not only extends to informal actions that are not formal employment decisions but also to actions beyond the workplace setting: "The scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm."26 The Court observed, "An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace."27 The Court concluded: "A provision limited to employment-related actions would not deter the many forms that effective retaliation can take."28

Applying these principles, the Supreme Court upheld a jury verdict for Sheila White, a laborer who, after reporting sexual harassment, was removed from forklift duty and was subjected to a 37-day unpaid suspension before the company reversed the suspension and awarded her back pay. The Court held that a reasonable employee in White's position could have found these actions "materially adverse," because the job reassignment could reasonably be considered less desirable and because the unpaid suspension, although later rescinded, forced White to live for 37 days without income or any assurance that she could return to work.29

C. Causal Connection Liberally Construed

A discrimination plaintiff must offer direct or circumstantial proof of disparate treatment. A retaliation plaintiff has available a special avenue of proof: the timing of events. In 2001, in Clark County School Dist. v. Breeden,30 the Supreme Court held that temporal proximity between oppositional activity and the adverse act can itself establish a prima facie case of a causal connection. The Ninth Circuit has further held that where an employee was fired just two days after reporting extreme discrimination to human resources, the "temporal proximity can by itself constitute sufficient circumstantial evidence of retaliation for purposes of both the prima facie case and the showing of pretext."31

D. Broad Interpretation of Protected Activity

A traditional discrimination plaintiff must show that unlawful discrimination actually occurred. If the plaintiff is factually wrong about the existence of discrimination, then the plaintiff loses. Not so in a retaliation case, where the plaintiff can prevail even if the plaintiff was mistaken in alleging discrimination; all the plaintiff need show is a good-faith, reasonable belief that the reported conduct amounted to unlawful discrimination.32

III. AN EMERGING COUNTERTREND: RECOGNIZING THE EMPLOYER'S RIGHT TO RELY ON A GOOD FAITH BELIEF THAT THE COMPLAINANT LIED

As detailed above, the law is solicitous toward the individual who reports discrimination and then alleges that an employer's ensuing action was retaliatory. But what if the employer took its action in a good-faith belief that the plaintiff's complaint was knowingly false?

In the normal retaliation case this issue does not arise. In the normal case, the employer's defense is that it would have made the same decision even had the plaintiff never complained. That is, the employer does not rely on the motives or content of the complaint itself as the justification for the adverse employment action.

In the special case—where the employer's defense does focus on the complaint itself—courts have often distinguished between the two clauses of Title VII's retaliation provision:

  • The opposition clause protects any employee who has "opposed any practice made ... unlawful ... by [Title VII]."33
  • The participation clause protects any employee who participates "in any manner in an investigation, proceeding, or hearing under [Title VII]."34

Because the participation clause, unlike the opposition clause, does not say that the opposed practice is one that Title VII makes unlawful, many courts have concluded that the participation clause protects activity regardless of whether the employee's complaint is wrong on the merits.35 These courts, focusing on the statutory language protecting participation "in any manner,"36 have indicated that participation-clause plaintiffs filing an EEOC charge or providing testimony as a witness can maintain retaliation claims even where their statements against the employer were unreasonable and willfully false.37

Two problems affect these decisions. First, the point that participation activity is protected, as a matter of law, without regard to the complainant's motivation, simply establishes one element of a retaliation claim (the existence of protected activity), and does not logically preclude the employer from relying on a legitimate reason for its disciplinary decision, including a good-faith conclusion that the complaint was maliciously false. Thus, it is one thing to say that the participation clause protects even false statements made in an EEOC charge; it is another thing to say that the malicious nature of those statements can never be the grounds for discipline, as employers have always been able to rely on a good-faith belief in the employee's misconduct as a basis for employment decisions.38

Second, the participation-clause decisions preceded the Supreme Court's decision in Breeden.39 The Breeden decision, although not addressing what conduct the participation clause protects,40 has influenced judges to conclude that participation-clause plaintiffs, just like opposition-clause plaintiffs, need an objective basis to believe that their complaints implicate unlawful conduct. The Seventh Circuit had concluded, "Because the Supreme Court [in Breeden] did not distinguish between opposition and participation claims, we also decline to do so and hold that the good faith, reasonableness requirement applies to all Title VII claims." 41

In 2010, Judge Posner, writing for the Seventh Circuit in Hatmaker v. Memorial Medical Center,42 elaborated on this reasoning that treats protection under the opposition clause and protection under the participation clause as basically the same:

An employer is forbidden to discriminate against an employee who participates in an investigation of employment discrimination. But participation doesn't insulate an employee from being discharged for conduct that, if it occurred outside an investigation, would warrant termination. ... This includes making frivolous accusations, or accusations grounded in prejudice. For it cannot be true that a plaintiff can file false charges, lie to an investigator, and possibly defame co-employees, without suffering repercussions simply because the investigation was about sexual harassment. To do so would leave employers with no ability to fire employees for defaming other employees or the employer through their complaint when the allegations are without any basis in fact. ... As further explained in Mattson v. Caterpillar, 359 F.3d 885, 890-91 (7th Cir. 2004),

Title VII was not designed to "arm employees with a tactical coercive weapon" under which employees can make baseless claims simply to "advance their own retaliatory motives and strategies." ... Were we to adopt a different standard, an employee could immunize his unreasonable and malicious internal complaints simply by filing a discrimination complaint with a government agency. Similarly, an employee could assure himself unlimited tenure by filing continuous complaints with the government agency if he fears that his employer will discover his duplicitous behavior at the workplace. This is not an unrealistic parade of horribles—it is, after all, what may have occurred in this case. Mattson filed an internal complaint that was baseless. Had Caterpillar immediately discovered the evidence that proved Mattson acted maliciously, both parties agree that Mattson could have been discharged at that time. However, Mattson then filed the charge with the ... EEOC and now argues that he cannot be terminated even though Caterpillar discovered that both charges were filed maliciously. If we were to adopt Mattson's arguments, it would encourage the abuse of Title VII and the proceedings that it established.43

By this reasoning, employers can discipline employees who, in the employer's honest judgment, have made maliciously false charges of unlawful discrimination. Although plaintiffs have contended that an employer in that case must prove that the complainant was lying, courts have permitted employers to discipline an employee on the ground of making a false complaint, so long as the employer concluded in good faith that the complainant was lying. In Richey v. City of Independence,44 Derald Richey, a city park ranger, escalated his dispute with park naturalist Connie Knott by telling human resources that she had sexually harassed him.45 Richey was discharged when a personnel board found that his harassment allegations were knowingly false.46 In Richey's retaliation lawsuit, the trial court granted summary judgment against him, and the Eighth Circuit affirmed:

An employee who engages in protected activity is not insulated from adverse action for violating workplace rules, and an employer's belief that the employee committed misconduct is a legitimate, non-discriminatory reason for adverse action. The normal rule in discrimination cases is that if an employer honestly believes that an employee is discharged for misconduct, but it turns out later that the employer was mistaken about whether the employee violated a workplace rule, the employer cannot be liable for discrimination. If the employer takes an adverse action based on a good faith belief that an employee engaged in misconduct, then the employer has acted because of perceived misconduct, not because of protected status or activity. 47

The Eighth Circuit held that the city legitimately relied on the personnel board's conclusion that Richey falsely reported harassment. 48

The Eleventh Circuit reached a similar result in EEOC v. Total System Services, Inc.,49 where an employee, Lindy Warren, had accused her supervisor of sexual harassment. After several witnesses confirmed her accusation, the supervisor was fired. But one of Warren's accusations went too far: she had described the supervisor unzipping his pants in front of Warren and two other workers. When the coworkers, who otherwise supported Warren, denied witnessing the zipper incident, the employer fired Warren for lying during an investigation.50 The EEOC filed a retaliation suit, alleging that the employer had fired Warren for reporting sexual harassment. The EEOC contended that the employer, to defend itself, must prove that she was actually lying. The district court granted summary judgment against the EEOC, and the Eleventh Circuit affirmed:

The EEOC says that an employee's speech in opposition [to harassing conduct] is protected—that is, cannot be the basis for negative employment acts—unless the employee actually lied. According to the EEOC, that the employer has a good faith belief that the employee lied is insufficient to justify adverse employment action. ... The EEOC argues that an employer must bear the risk of Title VII liability if the employer fires an employee who did not actually lie even when the employer had good reason to believe the employee had lied. We cannot agree.51

The Eleventh Circuit reasoned that "whether to fire an employee for lying to the employer in the course of the business's conduct of an important internal investigation is basically a business decision; this decision, as with most business decisions, is not for the courts to second-guess as a kind of super-personnel department." The Eleventh Circuit concluded that "the law will not protect the employee's job" if "circumstances give the employer good reason to believe" that the employee had engaged in "a knowingly false statement."52

IV. CONCLUSION

Because retaliation is relatively easy to claim, employees fearing for their job may feel tempted to lodge discrimination complaints as a form of job insurance. In Chen v. County of Orange,53 a California appellate court noted that

the possibility of a retaliation claim creates the problem of conferring a de facto immunity on the complainant despite poor job performance ... . Consider a hypothetical of a ne'er-do-well employee who wants to manipulate the system to his/her advantage: "Not doing your job well? Ax about to fall?" Never fear: file a discrimination claim, no matter how meritless. Your employer will be afraid to take any action because now you can sue for retaliation.54

Thus, while retaliation law has generally trended pro-plaintiff, an important countervailing doctrinal development is an increasing recognition that employers can impose discipline in an honest belief that the complainant, whether in a formal legal proceeding or not, has charged discrimination in bad faith. The employer who raises this defense may face, of course, great practical difficulty in showing that it was not relying on a discrimination complaint but rather on a maliciously false discrimination complaint, but at least courts now seeming willing to permit employers to attempt that showing.

  1. See http://www1.eeoc.gov//eeoc/statistics/enforcement/charges.cfm. From FY 2000 to FY 2011, retaliation filings increased from 19,694 to 37,334 (a 90% increase), while EEOC filings generally increased from 77,444 to 99,947 (a 29% increase) (last visited July 5, 2012).
  2. See id. (35.4% of EEOC charges alleged race discrimination, while 28.5% alleged sex discrimination).
  3. 544 U.S. 167 (2005).
  4. One might suppose that retaliation claims have earned special favor because retaliation law, in protecting opposition to unlawful conduct, thereby promotes compliance with the law. But the Supreme Court’s expansion of retaliation law did not invoke this public policy. Rather, the Jackson Court, using a textual rationale that the dissent found non-persuasive, concluded that retaliation for complaining about sex discrimination "is another form of intentional sex discrimination." 544 U.S. at 173-74.
  5. Id. at 184-85.
  6. 128 S. Ct. 1951 (2008).
  7. Id. at 1961-62.
  8. 128 S. Ct. 1931 (2008).
  9. Id. at 1943.
  10. 131 S. Ct. 1325 (2011).
  11. Id. at 1337.
  12. 519 U.S. 337 (1997).
  13. Id. at 346.
  14. 129 S. Ct. 846 (2009).
  15. Id. at 850.
  16. 131 S. Ct. 863, 868 (2011).
  17. The fiancée had alleged that her supervisors had engaged in gender discrimination against her.
  18. 567 F.3d 804, 807 (6th Cir. 2009) (10-6) (en banc).
  19. 131 S. Ct. at 870.
  20. Id. at 868. For further discussions of Thompson, see LINDEMANN & KADUE, WORKPLACE HARASSMENT LAW 1-45 to -46, 14-20 to -21, 15-3, 15-9, 16-22 to -23 (2012).
  21. Title VII's retaliation provision thus forbids an employer to "discriminate against any of his employees or applicants for employment ... because [that individual] has opposed any practice made an unlawful employment practice by this [Act]." 42 U.S.C. ǥ 2000e-3(a).
  22. A traditional discrimination claim involves (1) an adverse employment action (2) because of (3) the plaintiff's protected status, while a retaliation claim involves (1) an adverse employment action (2) because of (3) the plaintiff's protected activity.
  23. 548 U.S. 53 (2006)
  24. Id. at 67, 68.
  25. Id. at 63.
  26. Id. at 67.
  27. Id. at 63.
  28. Id. at 64.
  29. Id. at 71-73.
  30. 532 U.S. 268 (2001).
  31. Dawson v. Entek Int'l, 630 F.3d 928, 932-33 (9th Cir. 2011).
  32. E.g., Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 844 (1st Cir. 1998) (plaintiff reasonably believed that unwanted sexual advances from her employer's customer was something about which she had right to complain to management, even if those advances would not qualify as actionable harassment).
  33. 42 U.S.C. § 2000e-3(a).
  34. Id.
  35. See Jeffries v. Kansas Dep't of Soc. & Rehab. Servs., 147 F.3d 1220, 1231 (10th Cir. 1998) ("A plaintiff may maintain an action for retaliation based on participation in a protected proceeding regardless of whether the conduct forming the basis of her underlying complaint is adjudged to violate Title VII.").
  36. 42 U.S.C. § 2000e-3(a).
  37. See, e.g., Glover v. South Carolina Law Enforcement Div., 170 F.3d 411, 412 (4th Cir. 1999) ("participation clause shields even allegedly unreasonable testimony from employer retaliation"); Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304. 1312 (6th Cir. 1989) (dictum) (protection not lost even if charge is malicious and defamatory); Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1007 (5th Cir. 1969) (employer liable for unlawful retaliation when plaintiff discharged for malicious material contained in letter to EEOC); Proulx v. Citibank, N.A., 659 F. Supp. 972, 979 (S.D.N.Y. 1987) (even maliciously false EEOC charge is protected under participation clause), aff'd, 862 F.2d 304 (2d Cir. 1988).
  38. The courts deciding that employers are categorically unable to base discipline on maliciously false participation-clause statements have offered various rationales for depriving the employer of its traditional management right to discipline employees for misconduct. The Fourth Circuit, in Glover, reasoned that the unreasonableness of the complainant's offensive deposition testimony was "inextricably related" to the "testimony itself." 170 F.3d at 415. In the lead case, Pettway, the Fifth Circuit noted that the EEOC charge in question mostly contained "arguably good" allegations, leading the court to conclude that permitting a discharge for making false allegations was too "high" of a "price" for the employee to pay for saying "too much." 411 F.2d at 1007-08. The Pettway court also stated that Title VII would "be frustrated if the employer may unilaterally determine the truth or falsity of charges and take independent action," id. at 1004-05, without considering that the employer's freedom is not truly unilateral in that the employer's falsity determination, to avoid liability for retaliation, would have to be a non-pretextual reason made in good faith. The Pettway and Proulx courts noted the employer might have an available deterrent in the form of a defamation suit against the lying complainant, without noting that in some states an absolute privilege against defamation claims applies to statements made in official proceedings. See, e.g., Cal. Civ. Code § 47(b).
  39. Clark County School Dist. v. Breeden, 532 U.S. 268, 270 (2001).
  40. Id.
  41. Mattson v. Caterpillar, 359 F. 3d 885, 892 (7th Cir. 2004) (describing contrary cases as dicta that did not involve unreasonable charges filed in bad faith).
  42. 619 F.3d 741 (7th Cir. 2010).
  43. Id. at 745-46 (citations and internal quotation marks omitted).
  44. 540 F.3d 779 (8th Cir. 2008).
  45. 540 F.3d at 781.
  46. Id. at 782.
  47. Id. at 784 (citations omitted).
  48. Id. at 786.
  49. 221 F.3d 1171 (11th Cir. 2000).
  50. Id. at 1173.
  51. Id. at 1175.
  52. Id. at 1175, 1176. See also McCullough v. University of Arkansas for Medical Sciences, 559 F.3d 855, 864-65 (8th Cir. 2009) (plaintiff was not fired in retaliation for making sexual harassment complaints against female coworkers, but for making untruthful complaints).
  53. 96 Cal. App. 4th 926 (2002).
  54. Id. at 948.