You sent management an email complaining about discrimination. The next day, management fires you. The reasons they gave for firing you are untruthful and seem to be motivated by your opposition to discrimination. You've just made out the essential elements of a retaliation case.
"EEO retaliation" or Title VII retaliation refers to retaliation that the Equal Employment Opportunity Commission (EEOC) has jurisdiction to enforce, along with the federal U.S. District Courts. This is often referred to as Title VII (of the Civil Rights Act) retaliation, although similar anti-retaliation laws apply for disability and age.
For more information, refer to the EEOC's FAQ regarding retaliation. See the EEOC retaliation brochure. These resources do a great job of breaking down retaliation.
Additionally, view my retaliation video here:
Unless you have direct evidence of retaliation, you have to make a circumstantial case by proving four (4) essential elements: (1) you engaged in protected activity, (2) the person who retaliated was aware of your protected activity prior to retaliating, (3) the responsible person retaliated with an adverse action, (4) there is a nexus (or connection) to the protected activity and adverse action.
Numerous employees may find it challenging to meet these criteria. Please watch my video discussing common errors in retaliation cases.
Once the four (4) elements have been addressed, management must provide a valid non-discriminatory explanation for its actions. Subsequently, it must be demonstrated that these explanations are simply a cover-up for discriminatory practices.
1. Protected Activity
Beginning with the first element, protected activity, this includes the following:
filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
communicating with a supervisor or manager about employment discrimination, including harassment
answering questions during an employer investigation of alleged harassment
refusing to follow orders that would result in discrimination
resisting sexual advances, or intervening to protect others
requesting accommodation of a disability or for a religious practice
asking managers or co-workers about salary information to uncover potentially discriminatory wages
Being associated with someone who engaged in these protected activities.
It is evident that engaging in "prior EEO activity" is not the sole form of protected activity for protected activity. Any involvement in discrimination-related complaints and resistance to discrimination, like sending emails opposing discrimination, is considered protected activity. This encompasses reasonable accommodation requests related to disability or religion.
For the protected activity to be within the purview of EEO or Title VII retaliation, the protected activity must concern one of the following protected classes:
Race
Color
National Origin
Sex
Religion
Genetics
Disability
Age
Simply lodging complaints about harassment, mistreatment, or other potential reasons unrelated to discrimination, such as whistleblowing or union involvement, does not constitute protected activity under Title 7, the Rehabilitation Act, or the Age in Employment Discrimination Act. To be considered protected activity, it must involve making reasonable accommodation requests for disability or religion, taking part in discrimination proceedings, or standing against discrimination targeting a protected class, whether for oneself or others.
2. Knowledge of your Protected Activity
In order for management or the retaliator to be influenced by your protected activity, they must have actual knowledge of it. Typically, the responsible individual will deny any awareness of the protected activity. To establish that the retaliator was indeed aware of your protected activity, it is crucial to provide evidence such as witnesses, documents, emails, correspondence, recordings, and other forms of proof. Without this awareness, the retaliator cannot be motivated by an activity they are unaware of.
3. Retaliatory Adverse Action
This step has to come after the retaliator was aware of your protected activity. This is for obvious reasons; he or she cannot retaliate based on protected activity if they do not know about the protected activity.
The issue as to what is an "adverse action" is often hotly litigated. In typical discrimination cases, only real and tangible personnel actions that materially affect the pay, terms, or conditions of employment qualify as an adverse action. A termination is an obvious example. For retaliation purposes, however, the action can be any action that has a "chilling effect." So, any mistreatment that happens because of protected activity could possibly suffice as being sufficient to dissuade a reasonable employee from filing a charge of discrimination.
4. Nexus (Connection)
There must be a connection between your prior protected activity so that it motivates the adverse action taken. This can be inferred by there being close timing (usually less than three months) between the retaliator being aware of your protected activity and the actions taken. Nexus may also be established where the same person involved in the protected activity (such as a named harasser) is the same person retaliating. Nexus can also be established by other means, and it tends to be similar to your final task, proving pretext for discrimination.
Proving Pretext for Discrimination
Even if you satisfy Elements 1-4 above, the employer may articulate a seemingly legitimate non-discriminatory reason for its actions. At that point, the burden shifts back to you to disprove and show their reasons are mere pretext for discrimination. This may be proven with the suspicious timing, contradictory statements, lies, credibility issues, disproving false reasons, showing that comments were made about your protected activity, that others were treated differently, and other ways to prove that the employer's articulated reasons are pretextual. I call this the rebuttal part of the case, and it's the most important.
The Takeaway
Proving retaliation is less challenging than proving discrimination that is based on other classes. Human nature is more likely to make a person slip up and get revenge for those who file complaints or enforce their rights. Moreover, the adverse actions need only be "chilling" as opposed to "materially adverse." Even harassment that flows from retaliation has a less severe standard than a hostile work environment based on other protected classes.
If you feel you've been retaliated against, ensure you are proving these essential elements of your case. Be sure to get the timeline correct and be able to pinpoint the evidence that supports your claim of retaliation.
Comments