Title VII of the 1964 Civil Rights Act, it is illegal for an employer to take material adverse action against an employee for opposing discrimination in the workplace.
Almost anything that communicates an employee’s concern that unlawful discrimination has occurred is arguably protected opposition under the statute. See Crawford v. Nashville, 55 U.S. 271, 276 (2009).
The communication is protected, whether it comes from a discrimination claimant or a co-worker who perceives discrimination in the workplace.
Also, even if the underlying discrimination claim is legally insufficient, a retaliation claim arising from the same alleged discrimination can succeed. See Hertz v. Luzenac America, 370 F.3d 1014 (10th Cir. 2004).
Retaliation claims are not some hypothetical risk. Retaliation claims have been increasing rapidly, having almost doubled between 1997 and 2012. Medical Center v. Nassar, 133 S.Ct. at 2531. What can an employer do to eliminate or minimize the risk of retaliation claims?
First, employers must be aware of the parameters of the law.
Second, when presented with a complaint involving discrimination, a prompt and thorough workplace investigation should be conducted, with the investigator advising the witnesses that the employer prohibits retaliation for good faith participation in the investigation. Third, as with almost all human resource situations, the employer must (1) be consistent and (2) document all activity.
While retaliation claims must be kept in mind, not all changes in employment status are retaliation. To be unlawful retaliation, the employer must take action that would dissuade a reasonable employee from making or supporting a charge of discrimination. Burlington Northern v. White, 548 U.S. 53 (2006).
Personality conflicts, small insults and snubbing are not “material adverse actions.” Likewise, a reassignment of duties within the same job description does not constitute retaliatory discrimination. EEOC, 1991 Manual, §614.7 at 614-31.
In 2013, the U.S. Supreme Court in Nassar provided some additional comfort to employers by holding that retaliation claims under Title VII require proof of “but for” causation. Under a status-based discrimination claim (race, sex, ethnicity, etc.), the claimant must prove that the material adverse action of the employer was a “motivating,” though not a determinative, factor in the action.
In contrast, the “but for” causation standard from Nassar requires that retaliation be the “determinative” factor in the employer’s adverse action.
While the causation standard from Nassar raises the bar on retaliation claims, it will not eliminate such claims. Employers must remain keenly aware of the risk of retaliation claims in all contexts in which a legally protected employment right is allegedly abridged (e.g. ADA, FMLA, OSHA, etc.).
FOS has extensive experience dealing with the investigation and defense of discrimination and retaliation claims, and is ready to help when such a claim is alleged.