Avoiding Retaliation Claims Angie Rogers Webb Eley P

Avoiding Retaliation Claims Angie Rogers Webb & Eley, P. C. Post Office Box 240909 Montgomery, Alabama 36124 Telephone: (334) 262 -1850 Email: arogers@webbeley. com

Retaliation n Part of Title VII of the Civil Rights Act Opposition Clause: Employee opposed an unlawful employment practice Participation Clause: Employee made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing 2

Who is Protected n n Employee who opposed a practice or participated in a proceeding Third parties (spouses, siblings, etc. ) 2011 U. S. Supreme Court case resolved question n Unanimously recognized claim for fiancee who was fired after plaintiff filed EEOC charge n Fiancee was within the “zone of interest” n 3

How Does Plaintiff Prove the Case? n Direct Evidence “I’m firing you because you filed an EEOC complaint. ” n “That employee is a constant complainer. ” n Just because the evidence is “direct, ” it may still be insufficient to establish a causal connection n 4

How Does Plaintiff Prove the Case? n Circumstantial Evidence n Prima Facie Case Engaged in statutorily protected activity n Suffered a materially adverse employment action n Causal link between the protected activity and adverse employment action. n Non-discriminatory reason for adverse action n Employee must prove that reason is pretextual n 5

Protected Activities n n Extends beyond filing an EEOC charge or lawsuit “Passive” opposition counts Mentions sexual harassment in an interview as part of another investigation n Employee “spoke out” in response to employer’s questions n 6

Protected Activities: Opposition Clause n Opposition Clause requires good-faith, reasonable belief that the employer violated discrimination laws Complaining that superior has problems working with women and then making frivolous accusations during investigation is not protected n Fired employee had no good-faith reasonable belief of violation n 7

Protected Activities: Participation Clause n n Law is unclear about good-faith belief for participation clause Currently being litigated in 11 th Circuit 8

Adverse Employment Action n n Firing, demotion, pay decrease Test is whether it would dissuade a reasonable employee from making a complaint 9

Adverse Employment Action n Involuntary transfer may be adverse Reduction in pay n Less prestige n Diminished responsibility. n n De minimis inconvenience or alteration of responsibilities is insufficient because all transfers require new learning, new coworkers, and new responsibilities 10

Adverse Employment Action n Unfulfilled threats are not adverse employment actions Investigation does not insulate employees from otherwise terminable conduct Mixed-motive defense applies; employer would have taken same action anyway. n No award of damages or order to hire, reinstate, or promote; declaratory and injunctive relief only 11

Causal Relationship n n n Temporal proximity is a factor but suspicious timing alone is insufficient Decision-maker must know about opposition or participation by that employee Exception: Cat’s Paw Theory 12

Cat’s Paw Theory n Decision-maker was the “cat’s paw” of the supervisor with a discriminatory or retaliatory animus 13

Protection from Cat’s Paw Theory n n Causal connection between supervisor’s discrimination or retaliation and the adverse employment action may be broken Requires independent investigation by decision-maker and determination that the adverse employment action is entirely justified for reasons unrelated to supervisor’s original biased action 14

Avoiding Retaliation Claims 15