By: Cary Schwimmer
Every anti-discrimination statute contains a provision prohibiting the employer from retaliating against an employee for making a discrimination claim. Employers may not retaliate against employees who make an internal discrimination complaint; file a discrimination charge with the Equal Employment Opportunity Commission (EEOC) or similar state or local agency; or testify and/or participate in an agency or employer investigation, proceeding, or hearing regarding a discrimination claim. Since 2009, the largest percentage of EEOC charges have been retaliation claims. 39,469 retaliation charges were filed with the EEOC during the 2018 fiscal year, constituting 51.6% of all charges filed with the agency.
It is not uncommon for an agency, court or jury to conclude that an employee’s initial discrimination claim was without merit, but then find that after the claim was made, the employer unlawfully retaliated against the employee or other connected employee. We review the basic legal rules applied in analyzing retaliation cases below.
The Sixth Circuit U.S. Court of Appeals, whose jurisdiction includes Tennessee, most recently outlined these standards in Redlin v. Grosse Pointe Public School System, Case No. 18-1641 (April 16, 2019), when the court overturned the district court’s dismissal of plaintiff’s retaliation claim. Key points from Redlin, other Sixth Circuit decisions and the EEOC’s regulations include the following:
- To make out a prima facie retaliation case, the claimant must show that (1) management knew about the claimant’s protected activity of making or participating in a discrimination claim, (2) the employer subsequently took an action that was “materially adverse” to the claimant, and (3) there was a “causal connection” between the employee’s activity and the materially adverse action.
- A “materially adverse” employment action does not have to be something as drastic as termination, demotion or denying promotion. The only test is whether the employer’s action might have dissuaded a reasonable employee from making or supporting a claim of discrimination. The Sixth Circuit has found materially adverse employment actions include: denying training opportunities, placing an employee on a paid brief administrative leave with a performance improvement plan, referring an employee to a fitness-for-duty exam and escorting them out of the office, selectively enforcing policies with harsher punishment than for coworkers and frivolous investigations. The EEOC’s regulations include examples such as disparaging the employee to others, threatening reassignment, unduly scrutinizing work or attendance, workplace surveillance and threatening deportation.
- The “causal connection” element can be proved simply by the closeness in time or “temporal proximity” between the employee’s protected activity and the materially adverse employment action. The Sixth Circuit has held that even a 2-3 month time lapse between a plaintiff’s protected activity and the material adverse action is sufficient to satisfy a prima facie case of retaliation.
When an employee that has made or participated in a discrimination claim is still working for the accused employer, members of management—especially those supervising the employee—are in very sensitive territory regarding potential retaliation claims. It is understandable that the employee may be prone to interpret a justified action as unlawful retaliation, yet the employer must be able to run its business. Therefore, any potential adverse employee action should be reviewed by Human Resources, other appropriate management personnel and employment counsel prior to being taken. These entities should review these actions for correctness, but the action should still be implemented if justified.
The issue of closeness in time between an employee’s protected activity and materially adverse action against the employee can be a conundrum for the employer. Discharging an employee the day after the employer receives the employee’s EEOC charge is obviously dangerous. On the other hand, waiting for significant time to pass before taking action—in an attempt to avoid a causal connection charge—risks the appearance that the action is pretextual, because nothing was done at the time the underlying facts were learned. The best approach is to:
- Have the basis for any adverse action well-documented as soon as the facts are known;
- Be sure there is no mention of the employee’s protected activity or inclusion of that activity in the decision process and;
- Consult with employment counsel before taking any action against the employee.
Cary Schwimmer is of counsel in our Memphis, TN office. He has represented employers in numerous labor and employment matters for over 30 years. Cary handles EEOC and NLRB claims, workplace harassment investigations, non-compete and restrictive covenant litigation, collective bargaining matters, and creates employment policies and handbooks.