Employer v. employee: when is it forbidden retaliation under Title VII?

Author:Cholis, Nicholas P.

Does an Illinois employer violate Title VII's anti-retaliation provision by suing a worker who has filed a discrimination claim? If the employer's suit is defensive (a counterclaim or affirmative defense to the employee's claim), almost certainly not. But other kinds of litigation by employers against employee-claimants might constitute forbidden retaliation.

Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination, (1) depends for its success on employees' willingness to file complaints and act as witnesses. (2) It establishes an administrative procedure whereby the Equal Employment Opportunity Commission ("EEOC") receives employee complaints and works with state and local agencies to settle disputes. (3) But a complainant must file a charge of discrimination to set the process in motion, (4) after which the EEOC may exercise its broad investigatory powers. (5)

In short, Title VII only works if employees feel free to approach officials with their grievances. (6) To that end, the anti-retaliation provision of Title VII, section 704(a), prohibits an employer from retaliating against an employee who makes a charge, testifies, assists, or participates in a Title VII investigation, proceeding, or hearing or otherwise opposes unlawful employment practices. (7)

Workplace retaliation like termination or demotion is clearly forbidden. But does an employer's filing a lawsuit against a claimant constitute retaliation? The short an swer in the seventh circuit, unlike in many other circuits: almost certainly not if the litigation is defensive, such as a counterclaim or affirmative defense to the claimant's lawsuit. On the other hand, if your employer client is using litigation as a sword and not a shield, it might be a different story.

This article looks at the anti-retaliation provision of Title VII and the Supreme Court's Burlington case and related cases that expanded its scope. It also looks at the cases out of the seventh circuit and the northern district, which have held that while 1) there is a presumption against regarding employer litigation against employees as retaliation, 2) that presumption can neverthe less be overcome when an employer initiates litigation against an employee, but 3) defensive litigation by an employer is almost certainly not Title VII retaliation.

Retaliatory conduct defined

An employee who (i) opposes an unlawful employment practice under Title VII and (ii) was the object of an adverse employment action that (iii) was caused by his opposition to the unlawful employment practice (8) is a victim of retaliation. And an employee who reasonably believes he is opposing an unlawful employment practice is engaging in statutorily protected expression. (9) Employers, then, are broadly prohibited from taking adverse action against an employee for opposing an unlawful employment practice. (10)

Employee filing and the retaliation proscription. For employees who believe they have been subjected to discriminatory conduct, filing a discrimination charge with the EEOC effectively reports discrimination to the appropriate governmental authorities. Upon receiving the charge, the EEOC investigates and usually issues a finding.

Afterwards, the employee may bring a civil action against the employer. An employee in Illinois preserves his right to bring a lawsuit against the employer, provided the charge of discrimination was filed with the EEOC within 300 days of the last discriminatory act. (11)

Beyond providing legal recourse for the employee, filing a charge is also a protected activity under Title VII. (12) As a result, the employer may not retaliate against the employee by discharge, discipline, or the like. (13) Indeed, once the employee has filed a discrimination charge, any adverse action he or she suffers as a result can be the basis for a Title VII retaliation claim. (14)

Employer litigation as retaliation.

To what extent does the proscription against retaliation apply to legal action against employees rather than adverse treatment in the workplace? (15) Attorneys for the employer will almost certainly deny allegations of wrongdoing, but might also consider asserting affirmative defenses, counterclaims, and even bringing a separate cause of action against the employee. Will that be perceived as an attempt to intimidate and harass a civil rights claimant?

If so, the employer might be subject to additional liability under Title VII. At the very least, the employee may file an additional charge of discrimination. He or she might also plead a prima facie case of Title VII retaliation if the action is taken against the employee within a suspiciously short period after the charge or complaint is filed. (16)

Burlington expands the definition of forbidden retaliation

In 2006, the United States Supreme Court ruled in the seminal Burlington N & Santa Fe Ry Co v White (17) case that section 704(a) protects an employee from retaliatory action by the employer even if it does not directly alter the terms and conditions of employment.

The Court also answered the...

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