|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
Gomez-Perez v. Potter and CBOCS West Inc. v. Humphries – Discrimination Statutes Encompass Retaliation Claims Where Statutes are Silent on the Issue
Crawford v. Metropolitan Government of Nashville & Davidson County – The Expansion of the “Opposition Clause”
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
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
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
|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.
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.
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