§5.4 Retaliation

• Library: Labor and Employment Law: Private Sector (OSBar) (2011 Ed.)

§5.4 RETALIATION

§5.4-1 Retaliation Prohibited

Title VII of the Civil Rights Act of 1964 makes it unlawful

for an employer to discriminate against any of [the employer's] employees . . . because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].

42 USC §2000e-3(a).

NOTE: Former employees are also protected from retaliation when, for example, an employer issues a negative job reference because the former employee filed a charge of discrimination. Robinson v. Shell Oil Co., 519 US 337, 345-346, 117 S Ct 843, 136 L Ed2d 808 (1997); Hashimoto v. Dalton, 118 F3d 671, 675-676 (9th Cir 1997).

The statute contains separate protections for "opposition" and for "participation." Under the opposition clause, an employer is prohibited from retaliating against an employee because the employee "has opposed any practice made an unlawful employment practice by this title." 42 USC §2000e-3(a). Under the participation clause, an employer is prohibited from retaliating against an employee because the employee "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title." 42 USC §2000e-3(a).

To establish a prima facie case of unlawful retaliation under 42 USC §2000e-3(a), a plaintiff must show that (1) he or she engaged in protected activity (by opposing, filing a charge, or participating in the investigation of unlawful conduct); (2) he or she was subjected to an adverse employment action; and (3) the adverse action was causally connected to the protected activity. The burden then shifts to the employer to advance a legitimate, nonretaliatory reason for the adverse action, whereupon the employee may attempt to show that the reason is pretextual, in accordance with the usual scheme for proof of intentional discrimination claims. Steiner v. Showboat Operating Co., 25 F3d 1459, 1464-1465 (9th Cir 1994).

Title VII prohibits retaliation against someone so closely related to, or associated with, the person exercising his or her statutory rights that it would discourage that person from pursuing those rights. De Medina v. Reinhardt, 444 F Supp 573, 580 (DDC 1978) (employer is liable for retaliation when it takes adverse employment action against spouse of an employee who engages in protected activity); EEOC v. Ohio Edison Co., 7 F3d 541, 544 (6th Cir 1993) (plaintiff's allegation of reprisal for a relative's protected activities stated a claim under Title VII).

"In order to plead an actionable third-party reprisal claim pursuant to section 2000e-3(a), Plaintiff must allege: (1) that a relative or friend was engaged in statutorily protected expression; (2) resulting adverse employment action; and (3) a causal link between the protected expression and the adverse action." EEOC v. Nalbandian Sales, Inc., 36 F Supp2d 1206, 1212 (ED Cal 1998) (conducting thorough analysis of purpose of statutory antiretaliation provision). In such a third-party retaliation case, both the closely associated employees have standing to challenge the employer's retaliatory action taken against just one of them. Equal Employment Opportunity Commission Compliance Manual §8, at 8-9 (May 1998) (retaliation) (available at < www.eeoc.gov/laws/guidance/compliance.cfm >).

Under Oregon law, it is an unlawful employment practice for an employer, labor organization, or employment agency to "discharge, expel or otherwise discriminate" against any person who has opposed any unlawful employment practice, or has "filed a complaint, testified or assisted in any proceeding" under ORS chapter 659A or attempted to do so. ORS 659A.030(1)(f).

NOTE: ORS chapter 659A addresses as unlawful employment practices other retaliatory acts. It is an unlawful employment practice for an employer to discriminate against an employee for reporting in good faith a possible violation of Oregon's health care or residential facility statutes (ORS chapter 441, ORS 443.400-443.455), or testifying in good faith at an unemployment compensation hearing, ORS 659A.233. It is an unlawful employment practice for an employer to discriminate or retaliate against an employee who has reported in good faith a criminal activity, caused criminal charges to be brought against a person, cooperated with any law enforcement agency, brought a civil proceeding against an employer, or testified at a criminal or civil trial. ORS 659A.230. It is also an unlawful employment

...