1. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. RETALIATION CLAIMS: DOES THIS PROTECTED CLASS ECLIPSE ALL OTHERS ? Presented by: Patti W. Ramseur Smith Moore Leatherwood LLP 300 N. Greene Street, Suite 1400 525 North Tryon Street, Suite 1400 Greensboro, North Carolina 27401 Charlotte, North Carolina 28202 T: 336-378-5304 T: 704-384-2654 F: 336-433-7418

2. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. RETALIATION OVERVIEW Defining Retaliation Retaliation Statutes Goal: Understand the legal landscape of retaliation as an aid toward prevention

3. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. ANTI-RETALIATION LAWS Title VII of the Civil Rights Act of 1964 Age Discrimination Employment Act Equal Pay Act Americans With Disabilities Act Civil Rights Act of 1991 Family and Medical Leave Act Others

4. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. The data are compiled by the Office of Research, Information and Planning from data reported via the quarterly reconciled Data Summary Reports and compiled from EEOC’s Charge Data Systems and, from FY 2004 forward, EEOC’s Integrated Mission System RETALIATION CLAIMS BY THE NUMBERS

5. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. RETALIATION

6. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. THE PROBLEM WITH RETALIATION CLAIMS Difficult for employers to defend Most adverse decisions will look retaliatory Claims stand on their own More likely to survive SJ and result in trial

7. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. ELEMENTS OF A CLAIM 1.Protected activity 2.Adverse action 3.Causal connection between protected activity and adverse action

8. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. EE explicitly or implicitly communicates a belief that ER’s activity was unlawful discrimination –Based on reasonable and good faith belief –Manner of opposition must be reasonable PROTECTED ACTIVITY: OPPOSITION

9. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. Examples: –Threatening to file a charge or other formal complaint alleging discrimination –Complaining to anyone about alleged discrimination against oneself or others –Refusing to obey an order because of a reasonable belief that it is discriminatory –Requesting reasonable or religious accommodations PROTECTED ACTIVITY: OPPOSITION

10. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. PROTECTED ACTIVITY: PARTICIPATION Filing a charge, testifying, assisting with or participating in any manner in the statutory process (e.g. investigations, proceedings, hearings, lawsuits) –Protected whether or not underlying discrimination charge is valid or reasonable

11. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. ADVERSE ACTION: THE LAW TODAY… Burlington Northern & Santa Fe Railway Co v. White- U.S. S.Ct. 2006 Prohibits any employer action that “well might dissuade a reasonable worker from making or supporting a charge of discrimination.” “[U]nlike substantive provision” of Title VII, prohibited actions need not “affect terms and conditions of employment.” Thus, the law is expansive.

12. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. ADVERSE ACTION So,... the Court uses: A “materiality” standard meant to eliminate trivial harms A “reasonable employee” standard meant to provide objectivity

13. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. CAUSATION Adverse action taken because of an EE’s protected activity –Direct Evidence: written or oral statements that document the retaliatory motive –Circumstantial Evidence: raises an inference of retaliation –Timing & knowledge

14. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. WHO MAY CLAIM RETALIATION? Thompson v. North American Stainless, January 24, 2011 (Scalia) Unlawful to retaliate against someone “because he has made a charge.” (Title VII) But, “a person claiming to be aggrieved... by the unlawful employment practice” may sue. Thus, anyone “aggrieved,” not simply the person who made the underlying complaint.

15. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. Thompson (cont’): “Me and My Fiancé” The Court concluded: You might not engage in protected conduct if you think it means your fiancé will be fired. As the fiancé, you are the person aggrieved. As an employee, you are aggrieved in ways “related to or consistent with” the interests protected by Title VII (i.e., employment).

16. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. Thompson (cont’): Where Does It End Family Members—“almost always” Mere Acquaintance—“almost never” Supreme Court: “We decline to identify a fixed class of relationships for which third-party reprisals are unlawful.”

17. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. PREVENTING RETALIATION: THE BEST DEFENSE IS A GOOD OFFENSE Have a Policy Against Retaliation –Clearly define retaliation –Establish procedures for reporting and confronting –Publicize / Post –Emphasize zero tolerance

18. © 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. PREVENTING RETALIATION Provide Adequate Training & Appropriately Respond to Complaints –Immediately investigate the underlying complaint –Maintain confidentiality for underlying complaint –Focus on fixing the problem (“effective remedial action”) –Consistently and thoroughly document –Proactively monitor treatment of participants in protected activity AND THOSE WITH WHOM THEY HAVE CLOSE RELATIONSHIPS