Retaliation is often a concern for employees. Workers who speak out against discriminatory treatment are protected from retaliation by several statutes including the Age Discrimination in Employment Act, Americans with Disabilities Act, Family & Medical Leave Act, Massachusetts Fair Employment Practices Act, and Title VII of the Civil Rights Act of 1964. It is rare to find direct evidence of retaliation. Rather, retaliation claims are often built on circumstantial evidence. To establish a prima facie case of retaliation based on circumstantial evidence, an employee must show that she or he engaged in “protected conduct,” suffered some form of “adverse action,” and that a “causal connection” exists between the protected activity and the adverse action.Workplace Retaliation: Analyzing the Legal Elements
Retaliation claims often hinge on whether an employee engaged in protected conduct. The MCAD Guidelines have defined protected activity to include not only filing a formal complaint in court or with human resources but also the following:
- Asking a supervisor to refrain from engaging in the discriminatory conduct,
- Meeting with co-workers to discuss how to prevent the discrimination from continuing, and
- Testifying as a witness in support of a colleague’s allegations of unlawful conduct such as, for example, sexual harassment.
As the First Circuit in Mesnick v. General Electric acknowledged in a case involving alleged age discrimination, an employee who files a discrimination claim need not ultimately prevail to be protected from retaliation:
The fact that a plaintiff eventually proves unable to establish that the employer violated the ADEA in the first instance is not fatal to his prima facie case of retaliation. It is enough that the plaintiff had a reasonable, good-faith belief that a violation occurred; that he acted on it; that the employer knew of the plaintiff’s conduct; and that the employer lashed out in consequence of it.
Like protected activity, adverse actions can take many forms. An adverse action can range from the obvious like termination or demotion to the less severe like threats and reprimands. Notably, in Burlington Northern v. White, the Supreme Court held that Title VII’s anti-retaliation provision under 42 U.S.C. §2000e-3(a) is not limited to harms related to employment or that occur at the workplace. Rather, the Supreme Court broadly interpreted retaliation to include actions that are “materially adverse to a reasonable employee or job applicant … to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”
Moreover, as the Supreme Court made clear in Robinson v. Shell and the Supreme Judicial Court in Psy-Ed Corporation v. Klein, former employees are also protected from retaliation such as where, for example, a company provides negative references to a former employee who expressed allegations of discrimination.
The final step in establishing a prima facie case of retaliation is showing causation. As numerous courts have held, a causal connection between the protected activity and the adverse employment action can be inferred through close temporal proximity. In addition, causation can be demonstrated where an employer treats similarly situated employees, who did not engage in protected activity, more favorably. For example, Jane complains of sex discrimination and is then written up whenever she’s tardy, yet her colleagues who have expressed no such concerns face no consequences for arriving late.
Once a plaintiff satisfies these elements, the burden then shifts to the company to produce credible evidence in support of a legitimate, nondiscriminatory reason for its actions. In order to ultimately prevail on a retaliation claim, the plaintiff must show by a preponderance of the evidence that the company nevertheless acted with retaliatory intent. As stated by the Supreme Judicial Court in Lipchitz v. Raytheon, if a judge or jury “is persuaded that one or more of the employer’s reasons is false, it may (but need not) infer that the employer is covering up a discriminatory intent, motive or state of mind.”Workplace Retaliation: Litigation Strategies
Employers use a variety of strategies to defeat retaliation claims. An employer may claim, for instance, that the decision-maker responsible for the adverse action had no knowledge of the protected activity. Knowledge, however, can be imputed or inferred in several ways including the size of the employer, the individuals with whom the decision-maker routinely consulted in making previous personnel decisions, and the timing of the adverse action. The decisions below are examples of cases where knowledge of a protected activity has been inferred despite the lack of direct evidence:
NLRB v. Hospital San Pablo: “At a minimum, Arroyo was a committed union activist and actually solicited co-workers at the Hospital, and it is reasonable to believe that someone dropped a hint, if not more, to management. Human nature is not to the contrary. Direct evidence of an employer’s knowledge of an employee’s union activity is not needed; inferences may be used to establish the knowledge.”
Travers v. Flight Services & Systems: “A rational juror could conclude that such strongly held and repeatedly voiced wishes of the king, so to speak, likely became well known to those courtiers who might rid him of a bothersome underling. …. [T]here remains a genuine dispute as to whether the people who decided to fire Travers acted with awareness of the CEO’s desire to retaliate and, if so, whether Travers would have been fired anyway for reasons other than pursuit of his rights under the FLSA.”
Gordon v. New York City Board of Education: “The lack of knowledge on the part of particular individual agents is admissible as some evidence of a lack of a causal connection, countering plaintiff’s circumstantial evidence of proximity or disparate treatment. A jury, however, can find retaliation even if the agent denies direct knowledge of a plaintiff’s protected activities, for example, so long as the jury finds that the circumstances evidence knowledge of the protected activities or the jury concludes that an agent is acting explicitly or implicit upon the orders of a superior who has the requisite knowledge.”
Because knowledge of the protected activity can be a key issue in a retaliation claim, it is best to consult with an attorney to determine in what manner discrimination concerns should be raised and documented.Workplace Retaliation: Learn More