U.S. Supreme Court Continues Trend of Expanding Employee Protections Against Retaliation

Many federal and state labor and employment law statutes, including Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Fair Labor Standards Act (FLSA), prohibit employers from taking retaliatory action against employees who make complaints or exercise rights under the statutes. These anti-retaliation protections exist independent of the underlying substantive provisions of each statute. Thus, for instance, in the context of litigation under Title VII, an employee can lose on an underlying claim of employment discrimination, but prevail on a claim that he/she was retaliated against by the employer for having initially complained to the employer about discrimination. In fact, this scenario – where an employee prevails on a retaliation claim, but loses on the underlying substantive claim – is not uncommon.

Charges of retaliation filed with the Equal Employment Opportunity Com­mis­sion (“EEOC”) now exceed the number of other types of charges filed with the EEOC and are at an all-time high.1 In FY 2010, the number of retaliation charges filed with the EEOC totaled over 36,000, as compared to just over 22,000 10 years earlier.2 There is good cause to believe that this trend will continue, spurred in large part by a series of recent decisions by the United States Supreme Court which greatly expanded anti-retaliation rights for employees. In order to guard against potentially costly claims, employers and attorneys who counsel employees must be wary of these expanding anti-retaliation rights of employees.

Burlington Northern & Sante Fe Railway Company v. White – Adverse “Employment” Action No Longer Required
In 2006, the Supreme Court issued its decision in Burlington Northern & Sante Fe Railway Company v. White,3 holding that “the anti-retaliation provision [of Title VII] does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. … In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” This holding was a significant change from the long understood standard that to constitute retaliation, the employer must have taken an adverse employment action against the employee. The standard enunciated by the Supreme Court in Burlington allows an employee to state a retaliation claim by alleging that the retaliatory action taken by an employer in response to a complaint of discrimination by the employee is sufficient to dissuade reasonable employees from making discrimination complaints in the future, even if the employer’s action was not directly related to terms and conditions of employment. This change dramatically expanded the scope of retaliation claims under Title VII and has encouraged increased litigation.

Gomez-Perez v. Potter and CBOCS West Inc. v. Humphries – Discrimination Statutes Encompass Retaliation Claims Where Statutes are Silent on the Issue
Subsequent to Burlington, in 2008 the Supreme Court issued two decisions on the same day that further expanded potential retaliation claims. In Gomez-Perez v. Potter, the Supreme Court held that a federal employee may assert a claim of retaliation under the federal sector provision of the ADEA, even though the statute itself does not contain a separate anti-retaliation provision.4 Similarly, in CBOCS West, Inc. v. Humphries, the Court held that Section 1981 of the Civil Rights Act of 1866 encompasses retaliation claims as well as claims of race discrimination, even though that statue does not contain an anti-retaliation provision.5

Crawford v. Metropolitan Government of Nashville & Davidson County – The Expansion of the “Opposition Clause”
The next influential retaliation decision from the Supreme Court, Crawford v. Metropolitan Government of Nashville & Davidson County, was issued in January of 2009. In Crawford, the Supreme Court held that an employee can be protected from retaliation under Title VII’s anti-retaliation clause, even though he/she did not actually instigate or initiate a complaint of discrimination.

During an investigation into rumors of sexual harassment, a human resources officer asked Crawford whether she had witnessed “inappropriate behavior” on the part of the alleged harasser. Crawford described several instances of sexually harassing behavior. The employer took no action against the alleged harasser, but fired Crawford soon after it finished -its investigation. The employer claimed Crawford was fired for embezzlement, but Crawford filed a charge with the EEOC claiming her termination was in retaliation for answering questions about the alleged harasser’s behavior. The District Court granted summary judgment in favor of the employer, holding that Crawford was not protected by Title VII’s anti-retaliation provision because she had not “instigated or initiated any complaint, but had merely answered questions by investigators in an already pending internal investigation, initiated by someone else.”7 The Sixth Circuit affirmed.8

The Supreme Court disagreed and specifically rejected the Sixth Circuit’s reasoning that retaliation requires “active, consistent ‘opposing’ activities to warrant protection” and that an employee must “‘instigate or initiate a complaint to be covered.'” The Supreme Court found no difference if a person “opposed” a practice by responding to someone else’s question or reported discrimination on her own initiative. Thus, the Court significantly lowered the bar on what constitutes protected activity for purposes of a retaliation claim.

Thompson v. North American Stainless, LP – “Third Party” Retaliation Claims Are Viable
Earlier this year, the Supreme Court issued its decision in Thompson v. North American Stainless, LP.9 Eric Thompson and his fiancé both worked at North American Stainless (“NAS”). Thompson’s fiancé filed a charge of sexual discrimination against NAS with the EEOC and three weeks later NAS fired Thompson. Thompson sued under Title VII,10 claiming “third party retaliation,” i.e. that he was fired in retaliation for his fiancé’s charge of discrimination.11 The Sixth Circuit affirmed the District Court’s grant of summary judgment to NAS, explaining that Thompson did not engage in any statutorily protected activity, either on his own behalf or on behalf of his fiancé, because he never made a complaint and, therefore, he “is not included in the class of persons for whom Congress created a retaliation cause of action.”12

The Supreme Court reversed, finding that if the facts alleged were true, NAS’s firing of Thompson was unlawful under Title VII. The Court relied on its decision in Burlington, holding that Title VII’s anti-retaliation provision must be construed to cover a broad range of employer conduct, and that “a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”13 The Thompson decision was another significant expansion of retaliation rights as the Court had never before recognized a so-called “third party”retaliation claim.

Kasten v. Saint Gobain Performance Plastic Corp. – “Filing” a Complaint Can Be Made Orally
The Court issued its most recent decision concerning retaliation claims on March 22, 2011 in Kasten v. Saint Gobain Performance Plastic Corp.14 In that case, the Court found that the anti-retaliation provision of the FLSA, which protects employees who “file” an FLSA complaint, is not restricted to written complaints, but also covers oral complaints made by employees. At issue was the following provision of the FLSA, which forbids employers:
to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act]…15

Kasten brought an FLSA retaliation suit against his former employer, claiming he was discharged because he made internal, oral complaints about the Company’s placement of their time clocks. For its part, the Company denied that Kasten was terminated because of his complaints, but rather because he often neglected to clock-in and clock-out. The Company also challenged the lawsuit on the ground that Kasten did not engage in protected activity because he only made internal, oral complaints about the time clock locations, whereas the statute requires that an employee “file” a complaint in order to engage in protected activity. The Seventh Circuit agreed, finding that the “natural understanding of the phrase ‘file any complaint’ requires the submission of some writing to an employer, court, or administrative body.”16

The Supreme Court disagreed and held that the phrase “file any complaint” includes the filing of oral complaints.17 The Court did agree, however, that the complaint must be sufficient to put the employer on “fair notice.”18 Unfor­tunately, the parameters of what is considered “fair notice” will be decided in subsequent litigation on a case-by-case basis. Thus, more litigation over this issue is likely.

Employer Best Practices to Reduce Liability
In light of the Supreme Court’s continued willingness to expand employee anti-retaliation protections and the recent significant increase in retaliation charges filed with the EEOC, it is especially critical for employers to be proactive to guard against retaliation claims. Some best practices that employers should consider in order to avoid liability in this everexpanding area of law, include:
• Create and enforce strong policies and procedures against retaliation. If an employer’s policies do not already contain anti-retaliation provisions, they should be amended. Encourage employees to come forward with complaints of retaliation without fear of reprisals.
• Establish complaint and investigation protocols.
• Train managers and supervisors on the employer’s anti-retaliation policies and practices, and educate them on the law of retaliation, the complaint process, and the penalties if retaliation occurs.
• Take complaints seriously and fully investigate them.
• Impose discipline against those who retaliate.
• Keep sufficient documentation of an employee’s performance deficiencies; documentation is essential to defend against retaliation claims.
• Before taking any action against an employee who has made a complaint, employers should consider: whether the employee has engaged in protected activity; whether there is temporal proximity between the employee’s complaint and any action being considered; assure that the Company’s legitimate business reasons are well documented; and consider what constitutes an adverse action, in light of the lower standard approved in Burlington.

John T. Bauer is the Office Managing Shareholder and Lisa M. Griffith is an Associate at Littler Mendelson’s Melville, Long Island office. Littler Mendelson’s practice is devoted exclusively to representing the interests of management in labor, employment and benefits law matters.

1. http://www.eeoc.gov/eeoc/statistics/enforcement /charges.cfm.
2. Id.
3. 548 U.S. 53, 57 (2006).
4. 128 S. Ct. 1931 (2008).
5. 553 U.S. 442 (2008),
6. 129 S. Ct. 846 (2009).
7. Id. at 850.
8. Crawford v. Metro. Gov’t of Nashville & Davidson County, 211 Fed. Appx. 373 (6th Cir. 2006).
9. 131 S. Ct. 863 (2011).
10. 42 U.S.C. 2000e.
11. Thompson, 131 S.Ct. at 867. Title VII provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has made a charge under Title VII.” 42 U.S.C. § 2000e-3(a).
12. Thompson, 131 S.Ct. at 867.v 13. Id. at 868.v 14. 131 S. Ct. 1325 (2011).
15. 29 U.S.C. § 215(a)(3) (emphasis supplied).v 16. Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834, 839 (7th Cir. 2009).v 17. Kasten, 131 S. Ct. at 1335.
18. Id. at 1334.