RETALIATION

What does Title VII say about retaliation?

Title VII prohibits employers from retaliating against employees who oppose an unlawful employment practice or who participate in an employment discrimination proceeding. This means that if an employee complains about sexual harassment in the workplace, the employer cannot retaliate against that employee by demoting them or subjecting them to some other sort of adverse employment action. It also means that an employer cannot take adverse action against an employee if that employee gives a deposition in a co-employee's discrimination suit.

Does Title Vll's retaliation clause protect an employee who participates not in a court proceeding or EEOC investigation but in an employer's internal investigation of sexual harassment?

Yes, the United States Supreme Court ruled in Crawford v. Metropolitan Government of Nashville (2009) that Title VII's protection against retaliation extends to a worker who speaks out against discrimination when questioned during an employer's internal investigation. Some lower courts had ruled that the anti-retaliation clause of Title VII did not extend to cover employees during internal investigations.

The Court explained that there is "reason to doubt that a person can 'oppose' by responding to someone else's question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question."

If an employee files both a sex or race discrimination claim and a retaliation claim, can the retaliation claim survive even if the underlying sex or race claim is dismissed?

Yes, an employee's retaliation claim can stand on its own merits—even if the underlying discrimination claim fails. For example, let's say a waitress alleges that her manager sexually harassed her. She complains about the harassment to management and then receives less desirable work shifts and other retaliatory actions. The waitress' retaliation claim would be strong even if her underlying sexual harassment claim was rejected by the court.

How does an employee prove retaliation?

It can be difficult for an employee to prove unlawful retaliation by an employer. However, one factor that is important is the closeness in time (in legal terms called "temporal proximity") between the employee's complaint of discrimination and the adverse employment action. For example, let's say an employee complains about sexual harassment and then the employer terminates her only one month later. That closeness in time may be enough to prove unlawful retaliation. It certainly seems to create an inference of unlawful retaliation. On the other hand, if there is a time gap between the protected conduct (complaining about discrimination) and the adverse employment action, then the employee must come up with some other type of evidence of retaliation.

What sorts of employer actions can constitute unlawful retaliation?

This is a great question but employers can come up with a variety of methods of retaliating against an employee short of discharging that employee. The U.S. Supreme Court in Burlington Northern v. White (2006; see LegalSpeak, p. 242) determined that employers retaliate against employees under Title VII if the employer engages in conduct that is materially adverse to an employee or engages in conduct that would deter a reasonable employee from complaining about retaliatory conduct.

 
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