Unlawful Retaliation and Workplace Investigations—lines, Bars, and “x” Factors
| Publication year | 2013 |
| Pages | 85 |
| Citation | Vol. 42 No. 11 Pg. 85 |
Articles Labor and Employment Law
By Mark Flynn
Labor and Employment Law articles are sponsored by the CBA Labor and Employment Law Section to present current issues and topics of interest to attorneys, judges, and legal and judicial administrators on all aspects of labor and employment law in Colorado.
Coordinating Editor
John M. Husband, Denver, of Holland & Hart LLP-(303) 295-8228, jhusband@hollandhart.com
Workplace retaliation claims continue to increase. This article highlights the information practitione rs need to know about unlawful retaliation under Title VII and offers guidance for performance of workplace investigations as part of a preventive law practice.
Charges of unlawful retaliation under Title VII of the 1964 Civil Rights Act, as amended (Title VII), have eclipsed other types of discrimination claims filed with the Equal Employment Opportunity Commission (EEOC).[1] A list of many of the federal statutes that include retaliation prohibitions is provided in Appendix 1. Retaliation claims, including whistleblower protections, represent an "X" factor in employment law that is becoming ubiquitous.
The increase in retaliation claims has been helped by the U.S. Supreme Court’s interpretation of the parameters of protected activity and what constitutes interpretation of the parameters of protected activity and what constitutes actionable retaliatory conduct.[2] On June 24, 2013, the Court seemingly curbed that trend by designating a "but for" causation standard for Title VII retaliation claims.[3] The lesser, motivating factor test created under the 1991 Civil Rights Act to codify mixed-motive claims under Title VII is no longer applicable to unlawful retaliation claims. The University of Texas Southwest Med. Ctr. v. Nassar decision appears to round out the Court’s treatment of the three elements of Title VII unlawful retaliation prompting this review.
This article provides an overview of workplace investigations. These types of investigations focus on retaliation claims, and address retaliation concerns during investigations for both employers and participating employees. To accomplish that, investigation insights are interjected throughout the general discussion of Title VII retaliation claims. The format juxtaposes the prima facie case elements and case law with the preventive law approach embodied in the practice of workplace investigation.[4] (See Appendix 2.)
Themes and Building Blocks
It is important to discuss themes and building blocks at the start. This is an area where one can lose the forest for the trees. The sheer volume of case law reports involving retaliation claims in 2013 can overwhelm. Limiting the discussion to Title VII retaliation claims provides clarity. Also, it is important to recognize that retaliation claims follow protected activity; thus, a basic grasp of Title VII discrimination is necessary.
Keep these recurring fundamentals in mind. Title VII prohibits discrimination in employment. Harassment is a subset of discrimination. For either discrimination or harassment to be unlawful, it must relate to a protected status (race, color, religion, national origin, sex, age, or disability). A primary objective of Title VII is not to provide redress but to avoid harm.[5] If the damage is done—for example, where unlawful discrimination results in a tangible employment action (TEA), such as firing, demotion, or other economic harm— the law provides recourse.
Short of a TEA, a primary objective of Title VII is to incentivize remedial measures, which promotes a judicially administrable standard. The Court sets a high bar to get to "unlawful, " and consistently underscores that context matters. Enter the affirmative defense, which drives the employer’s exercise of reasonable care and performance of workplace investigations to address unlawful hostile work environment (harassment) claims.[6] Short of a TEA, and even assuming the high bar is met, the affirmative defense deflects vicarious liability.[7]
The negligence standard applied to co-worker harassment cases similarly holds an employer liable for what it knew or should have known. The employer should not be liable where it took prompt action that was reasonably calculated to stop and prevent unacceptable conduct.[8]
Retaliation is Different
The anti-retaliation provision provides a separate cause of action, distinct from but tied to an initial claim of unlawful discrimination. The purpose of this provision is to provide unfettered access to the remedial mechanisms of Title VII.[9] The bar (already moving based on context[10]) lowers for the first two elements of a retaliation claim. The bar rises for the third element of causation. A common denominator in both categories is that context matters.
Workplace Investigation—Reasonable Care
A big piece of preventive law guidance to employers is reflected in two basic p rinciples of sound human resources management: (1) be consistent; and (2) document, document, document. Workplace investigations often evaluate the former and exemplify the latter. More to the point here is that a good investigation helps demonstrate the exercise of reasonable care.[11]
> Investigation insight: A workplace investigation should be prompt, impartial, and thorough.[12] The integrity of an investigation is fundamental to its basic objective, getting to the truth of a matter in dispute. Employers are well advised to take measures that support the integrity of the investigation process.
Fundamentally, an investigation seeks to resolve a matter in dispute. Where the truth is not sufficiently motivating, recognize that an investigation that lacks integrity is more easily discredited. A central premise advanced here is that the integrity of a workplace investigation requires the employer to prohibit retaliation against employee participants.
> Investigation insight: The ability to establish rapport with participants often describes how effectively the investigator interacts with reluctant or emotional witnesses. Explaining the purpose of the investigation and communicating the employer’s prohibition against retaliation for good faith participation, as well as setting confidentiality expectations when appropriate, are integral to the investigator’s ability to assuage employees.[13]
Unlawful Retaliation Under Title VII
Several cases speak to protected activity, adverse employment action, and causal connection under the Title VII unlawful retaliation standard. The following discussion generally explores these themes, referencing several of these cases.
> Investigation insight: Defining and maintaining clarity of scope in any workplace investigation is critical. When collecting and assessing relevant facts and participant perceptions, the investigator also must consider the elements of potential claims and defenses, as well as applicable methods of proof in the event of litigation.[14]
Protected activity under Title VII includes: (1) protected participation and (2) protected opposition.[15] These are discussed below.
Protected Participation
Protected participation is the act of filing a charge with the EEOC or participating in that process. According to the EEOC, participation is protected regardless of whether the allegations are valid or reasonable.[16]
> Investigation insight: Investigation of an employee’s EEOC complaint demands heightened sensitivity to retaliation prohibitions. This is all the more true if the charge appears unreasonable and, thus, are aggravating to leadership. Immediate and repeated admonitions regarding prohibitions against retaliation must occur. Whether the charging party followed an available complaint procedure is an important determination. If not, it is important to find out why.
Protected Opposition
What constitutes protected opposition represents the deep end of the pool. Protected opposition can range from bringing a formal EEO complaint to voicing informal complaints to supervisors.[17] That includes complaints on behalf of others. Almost anything that communicates an employee’s concern that unlawful discrimination has occurred is arguably protected opposition and puts an employer on notice.[18] No magic words are required.[19]
Reasonable, good faith belief. Retaliation claims judge the workplace’s reaction to alleged discrimination, even when that alleged discrimination is disproved. A retaliation claim based on protected opposition is not dependent on the underlying discrimination claim, but to be protected, the opposition must be founded in a reasonable, good faith belief that the opposed conduct (harassment) or action (discrimination) is unlawful under Title VII. The standard "empowers employees to report what they reasonably believe is discriminatory conduct without fear of reprisal" and without convincing a court that the employer actually discriminated against the employee.[20] The standard has subjective and objective components. The employee must subjectively believe that the employer engaged in an unlawful employment practice, and that belief must be objectively reasonable in light of the available facts.[21]
> Investigation insight: The gravity of this nuance in retaliation claims cannot be overstated. It must consistently inform an employer’s response to alleged discrimination in the workplace. The bar is lower. A harsh reaction to a complaint that does not present potential liability to an employer can quickly create potential for liability.
Unlawful hostile work environment. The U.S. Supreme Court addressed the requirement of a reasonable, good faith belief of unlawful discrimination in 2001 in Clark County School District v. Breeden.[22] The opinion reads as a general rebuke on sex harassment allegations run...
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