Employment Retaliation Claims on the Rise: Avoiding and ...media.straffordpub.com/products/employment... · 13/04/2017 · Recent Case Law Addressing Retaliation Claims • EEOC

Employment Retaliation Claims on the Rise:

Avoiding and Defending EEOC Charges

and Private Lawsuits Navigating the EEOC's New Enforcement Guidance on Retaliation,

Protected Activity, Materially Adverse Actions and Causation

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THURSDAY, APRIL 13, 2017

Presenting a live 90-minute webinar with interactive Q&A

William C. Martucci, Partner, Shook Hardy & Bacon, Washington, D.C.

Evan H. Pontz, Partner, Troutman Sanders, Atlanta

Sarah N. Turner, Partner, Gordon Rees Scully Mansukhani, Seattle

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2016 EEOC Enforcement Guidance on Retaliation and Recent Case Law

William C. Martucci

Shook, Hardy & Bacon Washington, DC

[email protected]

EEOC Retaliation Guidance

• Issued August 29, 2016.

• EEOC observed that retaliation is now the single

largest category of claims presented in its charges.

• New enforcement guidance advocates expansive

interpretations of the law to broaden retaliation

protections.

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• Preconditions to retaliation claim include:

1. Protected activity – either participation in an EEO

process or opposition to discrimination;

2. Materially adverse action by the employer;

3. A requisite level of causal connection between the

protected activity and the materially adverse action.

• These should be read and enforced expansively.

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What Is Protected Activity?

• Participation In An EEO Process: Participation in an EEO process is protected whether or not an individual has a reasonable, good faith belief that the allegations are or could become unlawful.

o EEOC rejects decisions by the Seventh and Eighth Circuits holding the anti-retaliation protections of Title VII do not extend to individuals making false claims to the EEOC.

• Opposition To Discrimination: “Opposition to discrimination” must be “reasonable” in manner to receive protection.

o EEOC states it is afforded great discretion to determine what constitutes protected activity.

o Suggests the reasonableness of behaviors alleged to be in opposition to discrimination may be eroded as a defense to retaliation claims.

o The Guidance rejects the “manager rule”: that managers must step outside their management roles and take a position adverse to the employer in order to engage in the protected activity of opposition to discrimination.

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• The Guidance recognizes Anticipatory Retaliation:

o “Retaliation occurs when an employer takes a materially

adverse action because an individual has engaged, or may

engage, in activity in furtherance of the EEO laws the

Commission enforces.”

o Cites Beckel v. Wal-Mart Assocs., Inc., 301 F.3d 621, 624 (7th

Cir. 2002) (holding that threatening to fire plaintiff if she sued

“would be a form of anticipatory retaliation, actionable as

retaliation under Title VII”); Sauers v. Salt Lake City, 1 F.3d

1122, 1128 (10th Cir. 1993) (“Action taken against an individual

in anticipation of that person engaging in protected opposition

to discrimination is no less retaliatory than action taken after

the fact.”).

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What Is A Materially Adverse Action?

• EEOC adopts very broad view.

• Materially adverse action includes one-off incidents, warnings, dissuasive activities that do not directly affect employment, and activities outside the workplace that may dissuade an applicant, employee or former employee from engaging in protected activity.

• Actions purportedly taken against close family members on account of an applicant, employee, or former employee engaging in protected activity also will be challenged as retaliatory.

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What Is Causation?

• The Guidance acknowledges that the Supreme Court has held that the standard for proof of retaliation under Title VII is that “but for” the retaliatory motive, the employer would not have taken the adverse action.

• The Guidance introduces the “motivating factor” standard for federal sector Title VII and ADEA retaliation cases, prohibiting retaliation if it is a mere motivating factor behind an adverse action.

o Suspicious timing, incriminating oral or written statements, evidence of how comparable individuals were treated differently, and inconsistent or shifting explanations of the adverse action can support a finding of retaliation.

o The employer’s ignorance of the protected activity or its legitimate, non-discriminatory reason for the adverse action may support a finding that no unlawful retaliation has occurred.

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• The Guidance also addresses Requests For

Accommodation.

• The Americans with Disabilities Act (ADA”) prohibits

interference with an applicant, employee, or former

employee’s rights under the ADA, including assisting another

in the exercise of his/her rights under the ADA.

• The Guidance suggests that the EEOC will aggressively

challenge conduct allegedly interfering with requests for

accommodation for disability under the ADA, as well as

requests for religious accommodation under Title VII.

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Supreme Court Case Law Addressing Retaliation Claims

Crawford v. Metro. Gov’t of Nashville and Davidson

Cnty., Tenn., 555 U.S. 271 (2009):

• Supreme Court held that Title VII’s anti-retaliation provision extends to

employees who speak out about violations, not on their own initiative,

but in answering questions during employer’s investigation of

coworker’s complaints.

• The term “oppose” carries its ordinary dictionary meaning of resisting or

contending against – it does not require active or instigating behavior.

• “When an employee communicates to her employer a belief that the

employer has engaged in… a form of employment discrimination, that

communication virtually always constitutes the employee’s opposition

to the activity.”

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EEOC Litigation Addressing Retaliation Claims

EEOC v. AutoZone, Inc., Case No. 14-cv-3385 (N.D.

Ill. May 9, 2014):

• According to the EEOC's complaint, from 2009-2011, AutoZone assessed

employees nationwide “points” for absences, without permitting any general

exception for disability-related absences.

• As a result, qualified employees with disabilities who incurred even modest

numbers of disability-related absences were terminated.

• The complaint also claims an employee was discharged in retaliation for

objecting to the attendance policy and filing a charge with the EEOC.

• The EEOC brought the suit under Title I of the Americans with Disabilities Act

(ADA), which prohibits disability discrimination in employment, and under

Title V of the ADA, which bars retaliation for reporting such discrimination.

• The case is currently in the discovery stage.

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Recent Case Law Addressing Retaliation Claims

Other Recent EEOC Retaliation Cases:

• EEOC v. McPherson Cos., Inc., 914 F. Supp. 2d 123 (N.D.

Ala. 2012): Held that a plaintiff engages in activity protected by

Title VII’s anti-retaliation provision when he opposes

employment practice that he has good faith, reasonable basis to

believe is unlawful.

• EEOC v. Zoria Foods, Inc., Case No. 1:13-at-00698 (E.D.

Cal.): Employer ordered to pay $1.47 million (maximum allowed

by statute) in sexual harassment and retaliation case where

EEOC alleged that male supervisors sexually harassed female

employees and fired both male and female employees when

they complained of the harassment.

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• EEOC v. Geo Group, 816 F.3d 1189 (9th Cir. 2016): Ninth Circuit

reinstated the EEOC's Title VII sexual harassment and retaliation

claims on behalf of twenty female victims and held, relying in part on

the Supreme Court's decision in Mach Mining, LLC v. EEOC, 135 S. Ct.

1645 (2015), that Title VII does not require the EEOC to identify all

victims prior to suit or to conciliate on an individual basis.

• EEOC v. Rite Way Serv., Inc., 819 F.3d 235 (5th Cir. 2016): Fifth

Circuit held that an employee engaged in protected opposition when

she responded to her employer’s questions about another employee’s

sexual harassment complaint.

o In ruling for the EEOC, the court stressed that context was important, and that

the touchstone is whether “an employee like [the charging party], not instructed

on Title VII law as a jury would be, [could] reasonably believe that she was

providing information about a Title VII violation?”

15 15


• EEOC v. PMT Corp., No. 14-cv-599 (D. Minn. Mar. 4,

2016):

o The EEOC alleged the defendant, a Minnesota-based manufacturer of

medical devices and equipment, failed to hire women for sales

representative positions because of their sex, failed to hire individuals over

the age of 40 for sales representative positions because of their age, and

retaliated against its human resources manager for opposing its unlawful

practices and providing information about those practices to EEOC.

o From 2007 through 2010, the defendant hired 70 individuals into outside

sales representative (OSR) jobs, none of whom were female or over the age

of 40.

o The parties entered into a $1 million consent decree applicable to all of the

defendant's facilities and operations.

16 16


• EEOC v. Hobson Bearing Int'l, Inc., No. 3:16-cv-5034 (W.D. Mo. Aug. 25,

2016):

o EPA suit alleging that the defendant, a wholesale supplier of ball bearings, violated the

retaliation provision of the Fair Labor Standards Act (FLSA) by filing a state court malicious

prosecution suit against a former employee because she filed an EPA charge with the

EEOC.

The defendant's suit alleged that the former employee had filed the charge “maliciously and without probable

cause . . . for the joint purpose of harassing [defendant] and of attempting to receive financial gain from

[defendant].” The suit sought economic and punitive damages from the former employee.

o The EEOC filed suit, and the defendant moved the same day to dismiss its suit against the

former employee without prejudice.

o Upon agreement of the parties, the court entered judgment against the defendant, citing

case law that charges filed with EEOC are absolutely privileged, even if containing false and

defamatory statements, and finding that the parties agreed that defendant's filing of the suit

against the former employee because she filed an EPA charge violated the FLSA's

retaliation provision.

o The defendant was ordered to pay the former employee $37,500 in damages.

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Selected Jury Instructions on Retaliation

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Sample Jury Instructions on Retaliation

Seventh Circuit:

• Plaintiff claims that he was [adverse action] by Defendant because of

[protected activity]. To succeed on this claim, Plaintiff must prove by a

preponderance of the evidence that Defendant [adverse action] him

because of his [protected activity]. To determine that Plaintiff was

[adverse action] because of his [protected activity], you must decide

that Defendant would not have [taken adverse action against] Plaintiff if

he had [not engaged in protected activity] but everything else had been

the same.

• If you find that Plaintiff has proved this by a preponderance of the

evidence, then you must find for Plaintiff. However, if you find that

Plaintiff did not prove this by a preponderance of the evidence, then

you must find for Defendant.

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Eighth Circuit: Retaliation for Participation in Proceedings

• Verdict for plaintiff if:

o First, the plaintiff [filed an EEOC charge alleging (discrimination)]; and

o Second, the defendant (discharged, transferred, reassigned) the plaintiff; and

o Third, the plaintiff's (discharge, transfer, reassignment) might well persuade a

reasonable person in the same or similar circumstances not to [file an EEOC charge];

and

o Fourth, the plaintiff's [filing of an EEOC charge] was a determining factor in the

defendant's decision to (discharge, transfer, reassign) the plaintiff.

• The filing of EEOC charge was “determining factor” only if the defendant would

not have discharged the plaintiff but for the plaintiff's filing of an EEOC charge;

it does not require that the filing of an EEOC charge was the only reason for

the decision made by the defendant.

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Eighth Circuit: Retaliation for Opposition

• Verdict for plaintiff if:

o First, the plaintiff complained to the defendant that he/she/third party was being

(harassed/discriminated against) on the basis of (_____); and

o Second, the plaintiff reasonably believed that he/she/third party was being

(harassed/discriminated against) on the basis of (_____); and

o Third, the defendant (discharged, transferred, reassigned) the plaintiff; and

o Fourth, the (discharge, transfer, reassignment) might well persuade a reasonable

person in the same or similar circumstances not to complain about

(harassment/discrimination); and

o Fifth, the plaintiff's complaint of (_____ harassment) (_____ discrimination) was a

(determining) factor in the defendant's decision to (discharge, transfer, reassign) the

plaintiff.

• Same “determining factor” standard as in participation instructions

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Ninth Circuit:

The plaintiff has the burden of proving:

1. the plaintiff engaged in or was engaging in an activity protected under

federal law, that is [activity];

2. the employer subjected the plaintiff to an adverse employment action, that

is [adverse employment action]; and

3. either (a) the plaintiff was subjected to the adverse employment action

because of his/her participation in protected activity or (b) the protected

activity was a motivating factor in the adverse employment action.

For 3(a): If the plaintiff has proved all three of these elements, the plaintiff is

entitled to your verdict, unless the defendant has proved by a preponderance of

the evidence that it would have made the same decision even if the plaintiff's

participation in a protected activity had played no role in the employment

decision.

22 22

Employment Retaliation Claims on the Rise: Avoiding and Defending EEOC

Charges and Private Lawsuits

Navigating the EEOC's New Enforcement Guidance on Retaliation, Protected Activity, Materially Adverse

Actions and Causation

Evan H. Pontz, Troutman Sanders LLP [email protected]

Best Practices to Minimize EEOC Charges & Lawsuits

1. Written anti-retaliation policy that is clear and unambiguous

2. Training of supervisors and managers

3. Internal complaint resolution procedures

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4. Unbiased investigation of claims

5. Documentation of investigations and resolutions

6. Effective employee relations practices

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1. Written Anti-Retaliation Policy

• Clear and Unambiguous

• Easily Understood by Employees

• Provides Examples of “Retaliation”

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2. Training Supervisors and Managers

• These are your “actors” – who can retaliate, since they

make/carry our adverse employment actions

• Must understand and avoid actual retaliation

o Statements, timing, other evidence

• Must avoid “perception” of retaliation

o Timing, unexplained, or misunderstood actions

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3. Internal Complaint Resolution Procedures

• Ideal to keep complaints “in-house”

o Easiest way to resolve and address issues

oKeeps government/outsiders away from your business

oProves to employees that you care

• Must be effective and sufficient for full investigation, resolution and satisfaction

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4. Unbiased Investigation of Claims • Actually unbiased investigator

oNot affected by outcome

oNot too close to alleged bad actors or employees

oPerceived as unbiased (as much as possible)

• Internal or External investigator? oPractical issues

oCost, speed, efficiency

oPrivilege issues

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5. Documentation of Investigations and Resolutions • Written complaint or claim

• Written documents and “evidence” from claimant and others

• Notes of interviews, impressions, observations

• Written draft and/or final report

• Providing report to claimant, company officials

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6. Effective employee relations practices

• Building trust with employees

• Belief – and proof – complaints will be taken seriously and will not result in retaliation

• Actually addressing legitimate concerns and improving the workplace

• Creating a culture of self-improvement

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RETALIATION:

STRATEGIES FOR DEFENDING AGAINST EEOC

CHARGES AND LAWSUITS

Sarah N. Turner [email protected]

RETALIATION

DEFENDING AGAINST EEOC CHARGE

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EEOC: Navigating the Procedures

• Charge • Mediation • Position Statement • Document Request • Witness Investigation • Findings No Probable Cause

Probable Cause • Notice of Removal • Conciliation

34

ART OF THE POSITION STATEMENT

Evaluate the Allegations:

Individual v. Systemic

Represented v. Unrepresented

Current or Former Employee

35


EEOC Strategic Enforcement Plan 2017- 2021

• Eliminating Barriers in Recruitment and Hiring.

• Protecting Vulnerable Workers, Including Immigrant and Migrant Workers, and Underserved Communities from Discrimination.

• Addressing Selected Emerging and Developing Issues.

• Ensuring Equal Pay Protections for All Workers.

• Preserving Access to the Legal System.

• Preventing Systemic Harassment.

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Tell a story: • Know your audience: Educate the investigator of the

facts making it easier for the investigator to see your side.

• Defend employer’s actions clearly, concisely, and well-supported with documents.

• Demonstrate employer’s knowledge and compliance with Title VII, ADA, and state discrimination laws.

• Pitfalls to avoid: Responses that are long, legalistic, and negative in attacking claimant.

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RETALIATION

LITIGATION STRATEGIES

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RETALIATION: PRELIMINARY ISSUES

Know your Burden of Proof

Prima Facie Case:

• Engaged in protected activity;

• Employer took adverse action against employee; and

• Causal connection between protected activity and adverse action (temporal proximity)

McDonnell Douglas Shifting Burden

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RETALIATION: PRELIMINARY ISSUES

• Response to Complaint:

Affirmative Defenses

Motion to Dismiss and/or Definitive Statement

• Removal: Federal or State Court

• Exhaustion of Administrative Remedies

• Arbitration Agreement

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RETALIATION: DISCOVERY

Informal Discovery:

Social Media

Employee-witness interviews

Plaintiff Background Check

Administrative Agencies FOIA Requests

Personnel Files/ Investigation Notes

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RETALIATION-DISCOVERY

Formal Discovery

Written Discovery

Subpoenas: Employers and health care providers

Depositions

Independent Medical Examination (“IME”)

Experts: economical, vocational, medical provider, human resource specialist, workplace investigator

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ALTERNATIVE DISPUTE RESOLUTION

• When is the best time?

• Responding to demand letters

• Formal Mediation

• Offer of Judgment

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EVIDENTIARY ISSUES

Mixed Motive: Plaintiff shows impermissible consideration of [retaliation] motivated adverse action. Employer must prove would have taken same employment action regardless of protected action.

Statistical Data: Most often used in multiple plaintiffs or class action to show pattern of disparate treatment.

Administrative Records: Depending on jurisdiction may be able to introduce EEOC findings and/or employer’s written submissions.

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MOTION FOR SUMMARY JUDGMENT

Factors to consider:

Can the case be decided as a matter of law?

What is the duration of the temporal proximity?

Strong documented support of reasons for adverse action.

Witness testimony supports documented evidence.

How much explaining needs to be accomplished on employer-side.

What evidence can plaintiff present to create (meritless or not) disputed facts.

Affirmative Defenses – ie., same actor defense.

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TRIAL

What is your theme?

Who is your jury?

Witness preparation

Document/Evidence Selection

Demonstrative Exhibits

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Documents

Employment Retaliation Claims on the Rise: Avoiding and ...media.straffordpub.com/products/employment... · 13/04/2017 · Recent Case Law Addressing Retaliation Claims • EEOC