The Perception of Retaliation

'What's the Problem?'

If you are an employer who thinks that these hypothetical situations could not possibly represent a legal problem for you, think again. All of these fact patterns were inspired by recent cases discussing the evolving theory of “perception retaliation.” Many employers know that they may not retaliate against employees who take actions to protect their civil rights under Title VII, the ADA, and other similar statutes. What employers may not be aware of, however, is that a growing number of courts are now looking not only to protect those employees who took some sort of civil rights action, but also those who can show that their employers perceived they took that action, even when they didn't.

This “perception retaliation,” though still rarely argued in the courts, is becoming more popular as a theory, as increasing numbers of trial courts ' and even some appeals courts ' are expressly embracing it. Employers would do well to keep their eye on the trend, and adjust their personnel policies accordingly.

The Expansion of Retaliation Provisions to Third Parties

Under Title VII of the Civil Rights Act of 1964 (as amended), 42 U.S.C.A. ' 2000e-2, employers may not discriminate against employees based on race, color, religion, sex or national origin. Besides discrimination based on these protected characteristics, however, Title VII also makes it unlawful for an employer to retaliate against an employee for pursuing his or her rights under the statute. (Similar retaliation provisions exist in other federal statutes, including the ADEA (29 U.S.C. ' 623(d)), ADA (42 U.S.C. ' 12203(a), the FLSA (29 U.S.C. ' 215(a)(3)), and OSHA (29 U.S.C. ' 660(c)).

Generally, with some important exceptions, the precedent for these retaliation provisions is viewed as interchangeable, as is the policy reason behind them: to prevent the chilling of claims. This article discusses Title VII in particular, but its conclusions can be extrapolated to all of these statutes with similar provisions. A retaliation claim is entirely separate from a discrimination claim, and does not require that the underlying discrimination be proven in order to be actionable.

Bringing a Claim

In order to bring a case of retaliation, an employee must provide evidence of the following three things: 1) participation in an activity protected by Title VII; 2) an adverse employment action; and 3) a causal connection between the participation in the protected activity and the adverse employment decision. The plain wording of the statute requires that a retaliation plaintiff “participate” in protected activity himself, and also suffer an adverse employment action himself.

Over time, however, several appeals courts began expanding the reach of the statute beyond its plain meaning. In these cases, if an employee filed a charge of discrimination, and her employer fired her father/brother/child/fianc' in order to punish her for doing so, then the employee had a separate claim for retaliation. This is even though the adverse employment action happened to someone else and not the employee herself. This is known as the “third-party retaliation” theory.

Third-Party Expansion

The “third-party retaliation” expansion beyond the statute's plain language acknowledges that threats to family members can deter potential claimants from enforcing the protections of the statute as much as threats to the self. However, as the various appeals courts considered whether or not to adopt the third-party expansion, judges, attorneys, and HR professionals waited to see how far the circle of protection could extend ' must the third party be related by blood or marriage? Or would a close friend suffice? In a landmark Title VII case, Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011), the U.S. Supreme Court gave an answer: Third-party retaliation is cognizable under the statute, and what's more, the protection extends not just to a blood-or-marriage relationship, but to anyone within the employee's “zone of interests.”

The impact that the Thompson ruling has on both third-party retaliation cases and employer policies and practices is still shaking out, as the courts and employers work their way through defining who falls within an employee's “zone of interests.” But in addition to that direct impact, the Supreme Court's liberal interpretation of retaliation language and who it protects could also have an impact on courts discussing the separate-but-related question of what it protects.

Enter the new theory on the block: “perception retaliation.”

Perception Retaliation

In perception retaliation cases, an employer's mistaken “perception” that an employee participated in protected activity can create liability ' even when the perception is wrong. In other words, there is no protected activity ' the employer only thinks there is.

This can occur in myriad situations, including when an employer is motivated by a distasteful desire to punish an employee the employer thinks is protecting her own rights. However, it can also occur in the situations described earlier, which all involve employers who made employment decisions based on legitimate performance-based concerns. Because the terminations in those hypothetical scenarios occurred in close proximity to some kind of “protected activity” by an anonymous source or coworker, the fired employee may argue that the actual reason for his or her termination was not for poor performance, but was rather a case of “perception retaliation.”

The employee in the first situation could argue that the employer fired her because it thought she posted the anonymous letter ' whether or not she actually posted it. In the second example, the employee could argue that he was fired because the employer suspected him of filing the OSHA complaint ' whether or not he actually called in the complaint. And in the last scenario, the EEOC-charge-filing friend could argue that her roommate was fired because the employer thought the roommate was involved in her friend's EEOC charge ' even if she was not.

Document, Document, Document

Perception retaliation is not yet a widely embraced theory, as most appeals courts have not addressed it. However, it may become more popular after the U.S. Supreme Court showed its support for broad protections with Thompson. How can an employer protect its business from future claims of perception
retaliation?

First, as always, stay on top of documentation and training. Employers that are making legal, valid, business-related and/or performance-based employment decisions will have more protection from perception retaliation claims if they have ample documentation of every step in their decision-making process, and train their supervisors to be aware of this issue. Additionally, employers should keep confidential information as tightly controlled as possible. Many perception retaliation cases have failed because the employee was unable to show that the supervisor who performed the adverse employment action had any knowledge of the protected activity, and therefore couldn't have perceived anything improper about it.

On the other hand, it is also a good idea for at least one high-level employee in the company to keep tabs on all major confidential employee developments ' that person may be alert to potential perception retaliation claims if she knows who is filing charges, who was recently disciplined, and who has made complaints, both formal and informal. In addition, employers would do well to take a second look at nepotism and family-employment policies, and decide how to structure them to maximize employee productivity and satisfaction while minimizing risk. Perception retaliation is still relatively rare, but its popularity is growing, and employers would do well to inform themselves and their supervisors of it.

Gillian Watson Egan is an employment attorney with Burr & Forman LLP, resident in the firm's Mobile, AL, office. A former Human Resources manager herself, Ms. Egan represents employers involved in a variety of disputes. She may be reached at 251-345-8222 or [email protected].

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I've got a hypothetical for you: Let's say that one of your employees tapes an anonymous letter onto the wall between the restrooms where customers can see it. The letter makes allegations of discrimination that have never been reported to you through the normal reporting policy. Rumor has it that the anonymous writer is the same woman whom you put on a “Last Chance Agreement” last month for failing to meet productivity goals. A couple of days later, you terminate her for violating her agreement, following a loud argument full of curse words with a member of management. However, you later discover that the person who posted the anonymous letter was someone else.

Or what about this one: You've got another employee who has been a major problem. He's had a number of write-ups and is on his last warning. Any subsequent offense will lead to a termination of his employment. In a totally unrelated incident, someone files a complaint with OSHA, and you are the recipient of a surprise on-site inspection. The next day, when the problem employee is five minutes late, you terminate him.

Or: Two employees of a retail establishment are best friends and roommates who spend a lot of time together. One has been disciplined a number of times, and you are getting ready to fire her for a failure to follow company rules. Then, the other files a charge of race and sex discrimination with the EEOC. You go ahead and fire the first employee anyway.

'What's the Problem?'

If you are an employer who thinks that these hypothetical situations could not possibly represent a legal problem for you, think again. All of these fact patterns were inspired by recent cases discussing the evolving theory of “perception retaliation.” Many employers know that they may not retaliate against employees who take actions to protect their civil rights under Title VII, the ADA, and other similar statutes. What employers may not be aware of, however, is that a growing number of courts are now looking not only to protect those employees who took some sort of civil rights action, but also those who can show that their employers perceived they took that action, even when they didn't.

This “perception retaliation,” though still rarely argued in the courts, is becoming more popular as a theory, as increasing numbers of trial courts ' and even some appeals courts ' are expressly embracing it. Employers would do well to keep their eye on the trend, and adjust their personnel policies accordingly.

The Expansion of Retaliation Provisions to Third Parties

Under Title VII of the Civil Rights Act of 1964 (as amended), 42 U.S.C.A. ' 2000e-2, employers may not discriminate against employees based on race, color, religion, sex or national origin. Besides discrimination based on these protected characteristics, however, Title VII also makes it unlawful for an employer to retaliate against an employee for pursuing his or her rights under the statute. (Similar retaliation provisions exist in other federal statutes, including the ADEA (29 U.S.C. ' 623(d)), ADA (42 U.S.C. ' 12203(a), the FLSA (29 U.S.C. ' 215(a)(3)), and OSHA (29 U.S.C. ' 660(c)).

Generally, with some important exceptions, the precedent for these retaliation provisions is viewed as interchangeable, as is the policy reason behind them: to prevent the chilling of claims. This article discusses Title VII in particular, but its conclusions can be extrapolated to all of these statutes with similar provisions. A retaliation claim is entirely separate from a discrimination claim, and does not require that the underlying discrimination be proven in order to be actionable.

Bringing a Claim

In order to bring a case of retaliation, an employee must provide evidence of the following three things: 1) participation in an activity protected by Title VII; 2) an adverse employment action; and 3) a causal connection between the participation in the protected activity and the adverse employment decision. The plain wording of the statute requires that a retaliation plaintiff “participate” in protected activity himself, and also suffer an adverse employment action himself.

Over time, however, several appeals courts began expanding the reach of the statute beyond its plain meaning. In these cases, if an employee filed a charge of discrimination, and her employer fired her father/brother/child/fianc' in order to punish her for doing so, then the employee had a separate claim for retaliation. This is even though the adverse employment action happened to someone else and not the employee herself. This is known as the “third-party retaliation” theory.

Third-Party Expansion

The “third-party retaliation” expansion beyond the statute's plain language acknowledges that threats to family members can deter potential claimants from enforcing the protections of the statute as much as threats to the self. However, as the various appeals courts considered whether or not to adopt the third-party expansion, judges, attorneys, and HR professionals waited to see how far the circle of protection could extend ' must the third party be related by blood or marriage? Or would a close friend suffice? In a landmark Title VII case, Thompson v. North American Stainless, LP , 131 S. Ct. 863 (2011), the U.S. Supreme Court gave an answer: Third-party retaliation is cognizable under the statute, and what's more, the protection extends not just to a blood-or-marriage relationship, but to anyone within the employee's “zone of interests.”

The impact that the Thompson ruling has on both third-party retaliation cases and employer policies and practices is still shaking out, as the courts and employers work their way through defining who falls within an employee's “zone of interests.” But in addition to that direct impact, the Supreme Court's liberal interpretation of retaliation language and who it protects could also have an impact on courts discussing the separate-but-related question of what it protects.

Enter the new theory on the block: “perception retaliation.”

Perception Retaliation

In perception retaliation cases, an employer's mistaken “perception” that an employee participated in protected activity can create liability ' even when the perception is wrong. In other words, there is no protected activity ' the employer only thinks there is.

This can occur in myriad situations, including when an employer is motivated by a distasteful desire to punish an employee the employer thinks is protecting her own rights. However, it can also occur in the situations described earlier, which all involve employers who made employment decisions based on legitimate performance-based concerns. Because the terminations in those hypothetical scenarios occurred in close proximity to some kind of “protected activity” by an anonymous source or coworker, the fired employee may argue that the actual reason for his or her termination was not for poor performance, but was rather a case of “perception retaliation.”

The employee in the first situation could argue that the employer fired her because it thought she posted the anonymous letter ' whether or not she actually posted it. In the second example, the employee could argue that he was fired because the employer suspected him of filing the OSHA complaint ' whether or not he actually called in the complaint. And in the last scenario, the EEOC-charge-filing friend could argue that her roommate was fired because the employer thought the roommate was involved in her friend's EEOC charge ' even if she was not.

Document, Document, Document

Perception retaliation is not yet a widely embraced theory, as most appeals courts have not addressed it. However, it may become more popular after the U.S. Supreme Court showed its support for broad protections with Thompson. How can an employer protect its business from future claims of perception
retaliation?

First, as always, stay on top of documentation and training. Employers that are making legal, valid, business-related and/or performance-based employment decisions will have more protection from perception retaliation claims if they have ample documentation of every step in their decision-making process, and train their supervisors to be aware of this issue. Additionally, employers should keep confidential information as tightly controlled as possible. Many perception retaliation cases have failed because the employee was unable to show that the supervisor who performed the adverse employment action had any knowledge of the protected activity, and therefore couldn't have perceived anything improper about it.

On the other hand, it is also a good idea for at least one high-level employee in the company to keep tabs on all major confidential employee developments ' that person may be alert to potential perception retaliation claims if she knows who is filing charges, who was recently disciplined, and who has made complaints, both formal and informal. In addition, employers would do well to take a second look at nepotism and family-employment policies, and decide how to structure them to maximize employee productivity and satisfaction while minimizing risk. Perception retaliation is still relatively rare, but its popularity is growing, and employers would do well to inform themselves and their supervisors of it.

Gillian Watson Egan is an employment attorney with Burr & Forman LLP, resident in the firm's Mobile, AL, office. A former Human Resources manager herself, Ms. Egan represents employers involved in a variety of disputes. She may be reached at 251-345-8222 or [email protected].

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