Transcript RETALIATION CLAIMS: DOES THIS PROTECTED CLASS …

RETALIATION CLAIMS: DOES THIS
PROTECTED CLASS ECLIPSE
ALL OTHERS ?
Presented by:
Patti W. Ramseur
Smith Moore Leatherwood LLP
300 N. Greene Street, Suite 1400
Greensboro, North Carolina 27401
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RETALIATION OVERVIEW
• Defining Retaliation
• Retaliation Statutes
• Goal: Understand the legal landscape of
retaliation as an aid toward prevention
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ANTI-RETALIATION LAWS
• Title VII of the Civil Rights Act of 1964
• Age Discrimination Employment Act
• Equal Pay Act
• Americans With Disabilities Act
• Civil Rights Act of 1991
• Family and Medical Leave Act
• Others
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RETALIATION CLAIMS BY THE NUMBERS
The data are compiled by the Office of Research, Information and Planning from data reported via the quarterly reconciled Data Summary Reports and compiled from
EEOC’s Charge Data Systems and, from FY 2004 forward, EEOC’s Integrated Mission System
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RETALIATION
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THE PROBLEM WITH RETALIATION
CLAIMS
• Difficult for employers to defend
• Most adverse decisions will look retaliatory
• Claims stand on their own
• More likely to survive SJ and result in trial
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ELEMENTS OF A CLAIM
1.
Protected activity
2.
Adverse action
3.
Causal connection between protected activity and
adverse action
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PROTECTED ACTIVITY: OPPOSITION
• EE explicitly or implicitly communicates a belief
that ER’s activity was unlawful discrimination
– Based on reasonable and good faith belief
– Manner of opposition must be reasonable
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PROTECTED ACTIVITY: OPPOSITION
• Examples:
– Threatening to file a charge or other formal complaint
alleging discrimination
– Complaining to anyone about alleged discrimination
against oneself or others
– Refusing to obey an order because of a reasonable belief
that it is discriminatory
– Requesting reasonable or religious accommodations
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PROTECTED ACTIVITY:
PARTICIPATION
• Filing a charge, testifying, assisting with or
participating in any manner in the statutory process
(e.g. investigations, proceedings, hearings, lawsuits)
– Protected whether or not underlying
discrimination charge is valid or reasonable
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ADVERSE ACTION: THE LAW
TODAY…
•
Burlington Northern & Santa Fe Railway Co v. White- U.S. S.Ct. 2006
• Prohibits any employer action that
“well might dissuade a reasonable
worker from making or supporting a charge
of discrimination.”
•
“[U]nlike substantive provision” of Title VII, prohibited actions need not
“affect terms and conditions of employment.”
•
Thus, the law is expansive.
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ADVERSE ACTION
So, . . . the Court uses:
• A “materiality” standard meant to eliminate trivial
harms
• A “reasonable employee” standard meant to provide
objectivity
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CAUSATION
• Adverse action taken because of an EE’s protected
activity
– Direct Evidence: written or oral statements that
document the retaliatory motive
– Circumstantial Evidence: raises an inference of
retaliation
– Timing & knowledge
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WHO MAY CLAIM RETALIATION?
• Thompson v. North American Stainless,
January 24, 2011 (Scalia)
• Unlawful to retaliate against someone “because he
has made a charge.” (Title VII)
• But, “a person claiming to be aggrieved . . . by the
unlawful employment practice” may sue.
• Thus, anyone “aggrieved,” not simply the person who
made the underlying complaint.
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Thompson (cont’): “Me and My Fiancé”
The Court concluded:
• You might not engage in protected conduct if you think it
means your fiancé will be fired.
• As the fiancé, you are the person aggrieved.
• As an employee, you are aggrieved in ways “related to
or consistent with” the interests protected by Title VII
(i.e., employment).
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Thompson (cont’): Where Does It End
• Family Members—“almost always”
• Mere Acquaintance—“almost never”
• Supreme Court: “We decline to identify a fixed class of
relationships for which third-party reprisals are unlawful.”
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PREVENTING RETALIATION: THE
BEST DEFENSE IS A GOOD OFFENSE
• Have a Policy Against Retaliation
– Clearly define retaliation
– Establish procedures for reporting and confronting
– Publicize / Post
– Emphasize zero tolerance
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PREVENTING RETALIATION
• Provide Adequate Training & Appropriately Respond to
Complaints
– Immediately investigate the underlying complaint
– Maintain confidentiality for underlying complaint
– Focus on fixing the problem (“effective remedial action”)
– Consistently and thoroughly document
– Proactively monitor treatment of participants in protected
activity AND THOSE WITH WHOM THEY HAVE CLOSE
RELATIONSHIPS
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