© 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. RETALIATION CLAIMS: DOES THIS PROTECTED CLASS ECLIPSE ALL OTHERS ? Presented by: Patti W. Ramseur

© 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 1400Greensboro, North Carolina 27401 Charlotte, North Carolina 28202T: 336-378-5304 T: 704-384-2654F: 336-433-7418 F: 336-433-7418


RETALIATION OVERVIEW

• Defining Retaliation

• Retaliation Statutes

• Goal: Understand the legal landscape of

retaliation as an aid toward prevention


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


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


RETALIATION


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


ELEMENTS OF A CLAIM

1. Protected activity

2. Adverse action

3. Causal connection between protected activity and adverse action


• 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


• 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


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


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 chargeof discrimination.”

• “[U]nlike substantive provision” of Title VII, prohibited actions need not “affect terms and conditions of employment.”

• Thus, the law is expansive.


ADVERSE ACTION

So, . . . the Court uses:

• A “materiality” standard meant to eliminate trivial harms

• A “reasonable employee” standard meant to provide objectivity


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


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.


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).


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.”


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


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

Documents

© 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. RETALIATION CLAIMS: DOES THIS PROTECTED CLASS ECLIPSE ALL OTHERS ? Presented by: Patti W. Ramseur