Retaliation Claims.

Retaliation claims are on the rise. Commonly brought under state or federal discrimination laws, wage/ hour laws, Sarbanes-Oxley, or other regulatory schemes, such claims are becoming more prevalent. The Equal Employment Opportunity Commission (EEOC) reports that claimants asserted retaliation in nearly 30% of charges filed in 2006, up from about 22% ten years ago. One likely reason for the rise in such claims is that they are viable even when the claim of discrimination or illegal conduct that underlies the alleged retaliation is determined not to have merit. Indeed, a plaintiff can proceed with a claim that her employer retaliated against her for having complained about discriminatory treatment, even if the complaint is ultimately dismissed.

Advice to Employers

With the increasingly common assertion of retaliation claims, what can and should employers do to avoid or defeat these claims? One line of attack that employers should not overlook is a challenge to the assertion that the employee has not, in fact, engaged in 'protected activity.' Case law interpreting Title VII's anti-retaliation provisions gives employers a sound basis for arguing that the employee has not established the 'protected activity' element of the prima facie case of retaliation. Employers should carefully assess whether the employee has engaged in either of the two types of protected activity recognized by Title VII: 1) the employee has opposed conduct that is statutorily prohibited, generally by making a complaint about such conduct internally at the employer or at the applicable equal employment opportunity agency; or 2) the employee has participated in an investigation or other proceedings relating to such a complaint. Hasty or inattentive review of whether the plaintiff has met all the various requirements for showing opposition to an illegal practice or participation in the proceedings around such complaint may lead an employer to miss an issue that could dispose of the retaliation claim. This two-part article addresses the key requirements for establishing 'protected activity,' to demonstrate the scope of available challenges that employers can make on this element of a retaliation claim.

Proof of Retaliation Claims

The basic framework for retaliation claims is generally consistent among many of the laws and regulations that create such claims. Because Title VII is perhaps the most commonly invoked statutory provision in retaliation claims, however, the analysis below uses Title VII as the principal frame of reference.

A plaintiff alleging retaliation must prove three essential elements: 1) she engaged in protected activity, that is, she made a good-faith claim of alleged discrimination or she testified or otherwise participated in an investigation of alleged discrimination; 2) her employer subsequently subjected her to a materially adverse action, which may or may not be directly related to her employment; and 3) there is a causal connection between the protected activity and the adverse action.

Litigation of retaliation claims often focuses on the latter two elements. As to the 'adverse action' element, recent cases have sought to interpret and apply the Supreme Court's decision last year in Burlington Northern Santa Fe Railway v. White, 126 S. Ct. 2405 (2006). There, the Supreme Court departed from the law that had developed in some courts of appeals and held that the adverse action element of a retaliation claim under Title VII is satisfied when the employee proves that the employer took an action that a reasonable employee would find 'materially adverse.' The Court expressly held, however, that the adverse action need not be directly related to the terms and conditions of the plaintiff's employment. While cautioning that 'minor annoyances' and 'petty slights' will not rise the level of materially adverse employment actions, the Court nonetheless broadened the scope of employer's actions that may form a predicate for retaliation claims. See, e.g., Lewis v. City of Chicago, 2007 U.S. App. LEXIS 17811 (7th Cir. July 26, 2007) (factfinder could infer, on basis of plaintiff's evidence that she received more dangerous assignments after making discrimination complaint, that she had been subjected to materially adverse treatment); Williams v. W.D. Sports, N.M., Inc., 2007 U.S. App. LEXIS 18721 (10th Cir. Aug. 7, 2007) (holding that defendant's threat to oppose plaintiff's application for unemployment benefits, and its actions to carry out that threat, constituted materially adverse action and thus met standard set in Burlington Northern). With this expansion of the second element of the prima facie case of retaliation, employers will likely find that, post-Burlington Northern, it is more difficult to obtain summary judgment on the basis that the plaintiff failed to establish 'adverse action' had been taken against him.

As to the third element of a retaliation claim, which requires proof of a causal link between the protected activity and the adverse action, employers often focus on adducing evidence that no inference of causation may rationally be drawn, because of the timing of the actions, the difference in decision makers, the existence of an intervening event between the protected activity and the adverse action, or any number of other matters. Many ' though certainly not all ' of these arguments, however, generally raise issues of disputed fact or credibility, rather than arguments amenable to resolution as a matter of law. Accordingly, the issue of causation under the third element of the retaliation prima facie case is often reserved for the fact-finder.

Conclusion

Given the current state of the law on Title VII retaliation claims, therefore, it is time to give renewed attention to the first element of the prima facie case and explore whether the plaintiff who alleges retaliation has successfully established that he engaged in protected activity. Part Two of this article will discuss what is considered 'protected activity.'

Victoria Woodin Chavey, a member of this newsletter's Board of Editors and co-chair of Day Pitney's Labor and Employment Department, is a trial lawyer whose practice centers on the defense of workplace and employment claims. She represents clients across New England in state and federal court and in arbitration.

Retaliation claims are on the rise. Commonly brought under state or federal discrimination laws, wage/ hour laws, Sarbanes-Oxley, or other regulatory schemes, such claims are becoming more prevalent. The Equal Employment Opportunity Commission (EEOC) reports that claimants asserted retaliation in nearly 30% of charges filed in 2006, up from about 22% ten years ago. One likely reason for the rise in such claims is that they are viable even when the claim of discrimination or illegal conduct that underlies the alleged retaliation is determined not to have merit. Indeed, a plaintiff can proceed with a claim that her employer retaliated against her for having complained about discriminatory treatment, even if the complaint is ultimately dismissed.

Advice to Employers

With the increasingly common assertion of retaliation claims, what can and should employers do to avoid or defeat these claims? One line of attack that employers should not overlook is a challenge to the assertion that the employee has not, in fact, engaged in 'protected activity.' Case law interpreting Title VII's anti-retaliation provisions gives employers a sound basis for arguing that the employee has not established the 'protected activity' element of the prima facie case of retaliation. Employers should carefully assess whether the employee has engaged in either of the two types of protected activity recognized by Title VII: 1) the employee has opposed conduct that is statutorily prohibited, generally by making a complaint about such conduct internally at the employer or at the applicable equal employment opportunity agency; or 2) the employee has participated in an investigation or other proceedings relating to such a complaint. Hasty or inattentive review of whether the plaintiff has met all the various requirements for showing opposition to an illegal practice or participation in the proceedings around such complaint may lead an employer to miss an issue that could dispose of the retaliation claim. This two-part article addresses the key requirements for establishing 'protected activity,' to demonstrate the scope of available challenges that employers can make on this element of a retaliation claim.

Proof of Retaliation Claims

The basic framework for retaliation claims is generally consistent among many of the laws and regulations that create such claims. Because Title VII is perhaps the most commonly invoked statutory provision in retaliation claims, however, the analysis below uses Title VII as the principal frame of reference.

A plaintiff alleging retaliation must prove three essential elements: 1) she engaged in protected activity, that is, she made a good-faith claim of alleged discrimination or she testified or otherwise participated in an investigation of alleged discrimination; 2) her employer subsequently subjected her to a materially adverse action, which may or may not be directly related to her employment; and 3) there is a causal connection between the protected activity and the adverse action.

Litigation of retaliation claims often focuses on the latter two elements. As to the 'adverse action' element, recent cases have sought to interpret and apply the Supreme Court's decision last year in Burlington Northern Santa Fe Railway v. White , 126 S. Ct. 2405 (2006). There, the Supreme Court departed from the law that had developed in some courts of appeals and held that the adverse action element of a retaliation claim under Title VII is satisfied when the employee proves that the employer took an action that a reasonable employee would find 'materially adverse.' The Court expressly held, however, that the adverse action need not be directly related to the terms and conditions of the plaintiff's employment. While cautioning that 'minor annoyances' and 'petty slights' will not rise the level of materially adverse employment actions, the Court nonetheless broadened the scope of employer's actions that may form a predicate for retaliation claims. See, e.g., Lewis v. City of Chicago, 2007 U.S. App. LEXIS 17811 (7th Cir. July 26, 2007) (factfinder could infer, on basis of plaintiff's evidence that she received more dangerous assignments after making discrimination complaint, that she had been subjected to materially adverse treatment); Williams v. W.D. Sports, N.M., Inc., 2007 U.S. App. LEXIS 18721 (10th Cir. Aug. 7, 2007) (holding that defendant's threat to oppose plaintiff's application for unemployment benefits, and its actions to carry out that threat, constituted materially adverse action and thus met standard set in Burlington Northern). With this expansion of the second element of the prima facie case of retaliation, employers will likely find that, post-Burlington Northern, it is more difficult to obtain summary judgment on the basis that the plaintiff failed to establish 'adverse action' had been taken against him.

As to the third element of a retaliation claim, which requires proof of a causal link between the protected activity and the adverse action, employers often focus on adducing evidence that no inference of causation may rationally be drawn, because of the timing of the actions, the difference in decision makers, the existence of an intervening event between the protected activity and the adverse action, or any number of other matters. Many ' though certainly not all ' of these arguments, however, generally raise issues of disputed fact or credibility, rather than arguments amenable to resolution as a matter of law. Accordingly, the issue of causation under the third element of the retaliation prima facie case is often reserved for the fact-finder.

Conclusion

Given the current state of the law on Title VII retaliation claims, therefore, it is time to give renewed attention to the first element of the prima facie case and explore whether the plaintiff who alleges retaliation has successfully established that he engaged in protected activity. Part Two of this article will discuss what is considered 'protected activity.'

Victoria Woodin Chavey, a member of this newsletter's Board of Editors and co-chair of Day Pitney's Labor and Employment Department, is a trial lawyer whose practice centers on the defense of workplace and employment claims. She represents clients across New England in state and federal court and in arbitration.