Dodging the extra arrow: recent developments in the law of retaliation.

• Author: Kraftchick, Lee A.

Recent Developments in the Law of Retaliation

Retaliation claims under Title VII of the Civil Rights Act of 1964 have been rising dramatically in recent years. The number of retaliation charges filed with the Equal Employment Opportunity Commission (EEOC) more than doubled between 1991 and 1997.(1) It is by no means uncommon these days for an employer to avoid liability for a plaintiffs discrimination claim only to find that it is liable for as much or more in damages for retaliation.(2) From management's viewpoint, these retaliation claims are seen as "extra arrows" for employees' attorneys in discrimination lawsuits.(3) Recent developments within this circuit suggest that employers may need to reconsider how they respond to such claims. This article discusses those developments and makes some suggestions for improving an employer's chances of avoiding liability for retaliation.

The general framework for proving a case of retaliation under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and similar federal and state statutes has long been settled. Because direct evidence of retaliation is rare, plaintiffs generally rely upon circumstantial evidence.(4) A plaintiff establishes a prima facie case of retaliation using circumstantial evidence by showing that 1) she engaged in statutorily protected activity; 2) she suffered an adverse employment action; and 3) a causal connection between the protected activity and the adverse action.(5) The burden then shifts to the employer to produce a legitimate reason for the adverse employment action.(6) As in any other discrimination case, the employer's burden in a retaliation case is a burden of production only and is "exceedingly light."(7) If the employer meets its burden of production, the plaintiff must then prove by a preponderance of the evidence that the defendant's "proffered reason is a pretextual ruse to mask a retaliatory action"(8) The plaintiff bears the ultimate burden of persuasion to show that the employer was in fact motivated by retaliation in making its employment decision.(9)

The employer's burden of articulating a legitimate reason for its action and the plaintiffs proof of pretext are essentially the same in a retaliation case as in any other discrimination case.(10) This article will therefore concentrate on the plaintiff's proof of a prima facie case and suggest some steps prudent employers can take to avoid retaliation claims.

Statutorily Protected Activity

The first element of the plaintiff's prima facie case is proof that she engaged in statutorily protected activity. "Protected activity" is defined in Title VII's antiretaliation provision, 42 U.S.C. [sections] 2000e-3(a). That provision makes it unlawful for an employer to discriminate against an employee if 1) "he has opposed any practice made an unlawful employment practice by [Title VII]" (the opposition clause) or 2) "he has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under [Title VII]" (the participation clause).

* The Opposition Clause

The opposition clause has been interpreted expansively to protect employees even when they oppose practices that are not actually unlawful, so long as they have "`a good faith, reasonable belief that the employer was engaged in unlawful employment practices.'"(11) Not every complaint an employee voices, however, is protected. The complaint must involve an alleged violation of Title VII. Complaints that an employer has violated its own personnel procedures or laws other than Title VII are not protected activity.(12)

Moreover, it is not enough for a plaintiff to allege simply that he genuinely and honestly believed his employer's practice violated Title VII. The employee's belief must be objectively reasonable. The objective reasonableness of the plaintiffs' belief is to be judged on the basis of existing law. In Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385 (11th Cir. 1988), for example, the court held that even though the plaintiffs honestly believed that their employer's hair length policy for men was unlawful, their opposition to the policy was not protected because their belief was not objectively reasonable in light of well established law upholding similar hair length policies.

* The Participation Clause

Like the opposition clause, the participation clause has also been read to provide expansive protection. Employees are protected from retaliation for filing EEOC charges, or participating "in any manner" as a complainant or witness in EEOC proceedings or lawsuits.(13) Even persons who are themselves accused of discrimination enjoy some level of protection when they cooperate with an EEOC investigation or reluctantly give favorable testimony to a plaintiff.(14)

As expansive as the participation clause is, however, it is limited by its terms to investigations under Title VII and does not include protection for participation in an employer's internal investigations. The 11th Circuit considered this issue in EEOC v. Total Systems Services, Inc., 221 F.3d 1171 (11th Cir. 2000). In that case, an employee alleged that her employer retaliated against her in violation of Title VII by discharging her after she testified in the employer's internal investigation of sexual harassment. The court held that the employee's testimony in the internal investigation did not constitute protected activity under the participation clause because that clause protects only "proceedings and activities which occur in conjunction with or after the filing of a formal charge with the EEOC; it does not include participating in an employer's internal, in-house investigation, conducted apart from a formal charge with the EEOC."(15)

In reaching this conclusion, the 11th Circuit distinguished its earlier decision in Clover v. Total System Services, 176 F.3d 1346 (11th Cir. 1999). In that case, the employee alleged that her employer retaliated against her for making statements in connection with an investigation conducted by the employer in response to an EEOC charge. The court held that the employee's statements were protected "[b]ecause participation in an employer's investigation conducted in response to a notice of charge of discrimination is a form of participation, indirect as it is, in an EEOC investigation."(16) Thus, the question of whether an employee's participation in an employer's internal investigation is protected turns on whether the investigation was initiated by the employer or prompted by the filing of an EEOC charge.

Adverse Employment Action

The second element of a prima facie case is proof of an "adverse employment action." Not every employment action that makes an employee unhappy gives rise to a claim of retaliation.(17) As the 11th Circuit has explained, it is important not to "make a federal case" out of minor employment actions that cause no objective harm.(18) "Otherwise, every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit."(19) At the same time,

it is equally important that the threshold for what constitutes an adverse employment action not be elevated artificially, because an employer's action, to the extent that it is deemed not to rise to the level of an adverse employment action, is removed completely from any scrutiny for discrimination.(20)

Accordingly, for an employment action to give rise to a claim of retaliation, it must be "materially" adverse.(21)

In most cases, it is not difficult to determine whether an employment action is materially adverse. Discharges, demotions, denials of promotion, reductions in wages and denials of wage increases all have economic effects and obviously constitute materially adverse employment actions. Employment actions that do not have such obvious economic effects, such as the assignment of specific duties, derogatory comments, verbal criticism, lateral transfers, lowered performance evaluations, reprimands and counselings are not so obviously material or adverse.

The courts have generally held that complaints about an employee's assignments, verbal remarks, and genera] hostility from coworkers are not sufficient to constitute adverse employment actions, unless such conduct is severe or pervasive.(22) There is less agreement about whether criticisms which have no direct effect on pay, such as poor performance evaluations, counselings, and reprimands constitute adverse employment actions. Most courts hold that such criticisms are too minor to give rise to a claim for discrimination or retaliation.(23) The Fifth Circuit has held that performance evaluations and the like are mere precursors to employment action and that the laws against discrimination apply only to "ultimate employment actions."(24)

The 11th Circuit rejected the ultimate employment action requirement in Wideman v. Walmart Stores, 141 F.3d 1453, 1456 (11th Cir. 1998). In that case, the plaintiff alleged that her supervisors retaliated against her by improperly listing her as a no-show on a day that she was scheduled to have off, giving her written reprimands...