EEOC Issues Updated Retaliation Guidance, Part 3: Proving Retaliation

Retaliation
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In Parts 1 and 2 of our series of blog posts discussing the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on workplace retaliation, we discussed promising practices that employees can use as a framework for determining whether retaliation has taken place and what constitutes a protected activity.

Assuming an employee is the victim of retaliation and wants to file a complaint with the EEOC or in court, what issues and elements will the employee need to address?

Legal Elements to a Retaliation Claim

puzzleFor an employee to prove retaliation, three elements must be met:

  1. the employee participated in a protected activity,
  2. the employer undertook a materially adverse action against the employee, and
  3. the employer’s materially adverse action against the employee was in response to the protected activity—that is, there is a causal connection between the protected activity and materially adverse action.

We explained what a protected activity was in our last blog post, “EEOC Issues Updated Retaliation Guidance, Part 2: What Constitutes a Protected Activity.” However, with this current blog post, we’ll first look at what constitutes a materially adverse action and then how to prove a causal connection between the materially adverse action and protected activity.

Materially Adverse Action

A materially adverse action is any negative action an employer takes that may deter an employee from partaking in a protected activity, such as complaining about discrimination. Note that the negative action need not actually deter an employee from partaking in that protected activity.

Pay cuts, demotions, and firings are some of the more common and severe materially adverse actions. But an employer’s negative action need not be that extreme or even occur inside the workplace. While workplace annoyances and rude behavior will not constitute materially adverse action, examples of less common materially adverse actions include the following:

  • issuing a formal reprimand;
  • engaging in harassment, even if it doesn’t create a hostile work environment;
  • transferring an employee to a less desirable department;
  • giving negative work evaluations;
  • making negative comments about the employee to the media;
  • arranging a work schedule to make it difficult for an employee-parent to be able to take care of his or her children; or
  • excluding an employee from an office lunch that plays an important part in professional advancement.

Causal Connection

The final step in establishing a claim of retaliation is linking the act of partaking in a protected activity to the employer’s materially adverse action. To prove a causal connection, the employee will need to meet the applicable legal standard.

1. The “But-For” Standard

When a private employer or a state/local government is the employer, the employee must meet the “but-for” causation standard. This means that the employee must show that “but-for” the employer’s intent to retaliate, the materially adverse action would not have taken place. In other words, if it weren’t for the employee’s protected activity, the employer wouldn’t have taken a materially adverse action against the employee.

While this is a relatively high standard to meet, the employee doesn’t need to prove the only reason for the retaliation was because of participation in a protected activity—just that it was at least one of the reasons for the retaliation.

2. The “Motivating Factor” Standard

dominoesIf the federal government is the employer, things are very different. The employee must only apply the “motivating factor” standard. So what’s the difference between the two standards?

The “motivating factor” standard is easier for an employee to meet in court than the “but-for” standard because the “motivating factor” standard only requires that the employee prove that the retaliatory conduct was substantially motivated by the employee’s protected activity.

No matter which standard applies, a causal connection may be proven by circumstantial evidence, such as suspicious timing of the materially adverse action following the protected activity. Our earlier blog post titled “What Role Does Timing Play in a Retaliation Case?” discusses the issue of suspicious timing.

Employer Defenses

Even if an employee engages in a protected activity and is the victim of an employer’s materially adverse action, certain facts can prevent an employer from being liable for retaliation, such as the following:

  • the materially adverse action would have occurred even without retaliatory intent,
  • the employer has a legitimate, nonretaliatory reason for the materially adverse action, and
  • the employer was unaware of the protected activity.

Remedies Available

So, an employee is the victim of retaliation and wants to do something about it. What kind of remedies can the employee expect?

If the employee submits a complaint to the EEOC, the EEOC has the power to implement preliminary injunctive relief. Injunctive relief is a remedy in the form of a court order telling a party to do or not do something.

Compensatory and punitive damages are also available but depend on what antiretaliation provision the employee is relying upon. However, government employers are immune from a punitive damage award.

Compensatory damages are damages intended to compensate a plaintiff for harm suffered. An example of compensatory damages is lost wages due to an unlawful firing.

Punitive damages are damages awarded to the plaintiff with the goal of punishing the defendant.

Not all discrimination laws have the same remedies or provisions for retaliation. Compensatory and punitive damages are available under Title VII of the Civil Rights Act of 1964, the Genetic Information Nondiscrimination Act of 2008, the Age Discrimination in Employment Act, and the Equal Pay Act of 1963.

Under the Americans with Disabilities Act of 1990, there are no provisions providing for compensatory and punitive damages, although the courts are divided on whether compensatory or punitive damages are still possible under the ADA.

Summing It Up

  • A claim for retaliation has three elements: a protected activity, a materially adverse action, and a causal link between the protected activity and materially adverse action.
  • A materially adverse action is any negative action an employer takes that may deter an employee from engaging in a protected activity.
  • A causal connection between the protected activity and materially adverse action must be proven by either the “but-for” or “motivating factor” standards.
  • The “but-for” standard requires the employee to prove that if it weren’t for the protected activity occurring, the employer would not have taken a materially adverse action against the employee.
  • The “motivating factor” standard is easier for an employee to meet because it requires only that the employee prove that retaliatory intent was a substantial motivator for the materially adverse action.
  • An employer can defend itself against a retaliation claim by arguing any of the following: the materially adverse action would have occurred even without retaliatory intent; the employer has a legitimate, nonretaliatory reason for the materially adverse action; and the employer was unaware of the protected activity.
  • Depending on the antiretaliation provision at issue, an employee can obtain injunctive relief, compensatory damages, and/or punitive damages.