Revenge is SWEET... for Plaintiffs: Recent Trends in Retaliation Law Raymond Peeler Senior Attorney Advisor Office of Legal Counsel U.S. Equal Employment Opportunity Commission

EEOC Enforced Laws & Retaliation All have an anti-retaliation provision: –Equal Pay Act –Title VII of the Civil Rights Act –Age Discrimination in Employment Act –Rehabilitation Act –Americans with Disabilities Act –Genetic Information Nondiscrimination Act

Recent Supreme Court Cases Involving Retaliation Claims Kasten v. Saint-Gobain Plastics Performance Plastics Corp., 131 S.Ct (2011) (FLSA) –6-2 for Plaintiffs (Justice Kagan did not participate) Thompson v. N. Am. Stainless, LP, 131 S.Ct. 863 (2011) (Title VII) –8-0 for Plaintiffs (Justice Kagan did not participate) Crawford v. Nashville & Davidson County, 555 U.S. 271 (2009) (Title VII) –9-0 for Plaintiffs

More Supreme Court Cases involving Retaliation Claims Gomez-Perez v. Potter, 553 U.S. 474 (2008) (ADEA – federal employees) –6-3 for Plaintiffs CBOCS West, Inc. v. Humphries, 553 U.S.442 (2008) (§ 1981) –7-2 for Plaintiffs Burlington N. & Santa Fe Rwy v. White, 548 U.S. 53 (2006) (Title VII) –9-0 for Plaintiffs Jackson v. Birmingham Bd. of Ed., 544 U.S. 167 (2005) (Title IX) –5-4 for Plaintiffs

EEOC Charge Receipts – All FY FY2010 Receipts between K from 1997 to Dramatic increase began towards end of FY2007. Received record 99,922 charges in FY2010.

EEOC Charge Receipts By Basis 2010

EEOC Charge Receipt Trends By Basis FY

Federal Sector Complaint Trends By Basis FY

Who is Protected from Retaliation? Individual who has engaged in protected activity. –Participated in EEO Activity, OR –Opposed unlawful activity. Third party within “zone of interests” of someone who engaged in protected activity that the statute seeks to protect. (Thompson v. N. Am. Stainless LP, 131 S. Ct. 863 (2011))

What is Participation in EEO Process? Taking part, in any manner, in a proceeding, investigation, hearing, or litigation. Examples of protected participation include: –Filing a charge or lawsuit –In the federal sector, contacting an EEO Counselor –Serving as a witness in an EEOC investigation.

Example 1 Tim filed a charge alleging that he was being harassed on the bases of race, color, sex, national origin, and age because his supervisor failed to give him a birthday card. Two weeks after EEOC dismissed his charge, Tim is suspended, and his supervisor said that he should “avoid making stupid complaints about bogus issues if you want to keep working in this shop.”

Example 2 Marilyn filed a lawsuit alleging sexual harassment and unlawful termination from her position at Big Home Improvement Center. She applied for work with Large House Remodel Center in a position similar to her old job at Big Home, but was not selected. Based on comments from a friend who works at Large House, Marilyn believes that she was not hired because her lawsuit was well-known in the industry. She files a charge against Large House. Will it be dismissed?

What is Protected Opposition? Reasonable opposition to any practice made unlawful under the relevant anti-discrimination law. –Complaining about denial of reasonable accommodation. –Signing a Petition concerning perceived discrimination by the employer. –Picketing –Refusing to obey an order that one reasonably believes would make discrimination a term or condition of employment.

Example 3 HR opens an investigation of workplace sexual harassment by a manager. The investigator asks Vickie if she witnessed any sexual or harassing behavior by the manager, and she detailed incidents of the manager pushing her face towards his crotch, grabbing his crotch in her presence, and similarly crude behavior. Two other employees described similar behavior by the manager. The employer took no action against the manager, but fired Vicky and the other two workers. Has Vicky engaged in protected activity?

Example 4 Sally works as a payroll clerk in the Accounting Department. Aside from the Department Director, who is on vacation and unreachable, Sally is the only person with the necessary authorization to make payroll payments. After being passed over for a series of promotions, Sally complains to HR, claiming that the failure to promote her violated the ADA because she is near-sighted. She also threatens to delay payroll payments until her complaint is investigated. Fifteen minutes after sending this message, she is fired.

When can someone pursue a claim of retaliation? Unlawful retaliation includes an action that “well might have dissuaded a reasonable [person] from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Rwy v. White, 548 US 53, 68 (2006). This is a lower standard than is applied to discrimination claims that do not involve retaliation.

Example 5 Methuselah filed an age discrimination charge concerning his employer’s decision to reassign his highest commission clients to younger workers. Shortly after EEOC notified his employer, Fat Cat Investments, of the charge, his manager instructed IT to provide regular reports on his computer usage, and ordered two coworkers to keep M under surveillance and regularly report back on his activities. Is this actionable?

Example 6 After Jennifer testified at her coworker’s disability discrimination hearing, her schedule was changed from 7 a.m. – 3:30 p.m. to 9:00 a.m. – 5:30 p.m. This required Jennifer to completely reorder her private life, because she would not be able to pick-up her children after school as she had in the past. When Jennifer began working for her supervisor, she informed him that she had taken this job because it would allow her to spend time with her children in the afternoon.

Miscellaneous Retaliation Issues ADEA prohibits retaliation against federal employees, although there is no explicit anti-retaliation provision. Gomez-Perez v. Potter, 553 U.S. 474 (2008) FLSA prohibits retaliation for making internal complaints as well as complaints to an administrative agency or court. Kasten v. Saint-Gobain Plastics Performance Plastics Corp., 131 S.Ct (2011)

Plaintiffs Still Have to Prove it Person engaged in protected activity (or within the zone of interest). Suffered materially adverse action that “well might have dissuaded” her from pursuing her claim. Causal connection between prior protected activity and employer’s action.

Questions? Ray Peeler Senior Attorney Advisor Office of Legal Counsel U.S. Equal Employment Opportunity Commission (ph)