Retaliation

Question 1

Retaliation Claim Framework

Answer 1

• Plaintiff must establish, by a preponderance of the evidence:
  –He engaged in protected activity
  –He was subjected to an adverse employment action; and
  –There is a causal link between the protected activity and the adverse action.
  –Once plaintiff establishes these factors the case would proceed as it would under the McDonnell Douglas Framework.
• The defendant must articulate a legitimate nondiscriminatory reason for the adverse action and plaintiff must show that the reason is pretextual.

Question 2

Is plaintiff covered by the statute?

Answer 2

• Former employees are covered
• Those that refuse to participate in discrimination are covered

Question 3

Thompson v. North American Stainless, LP

Answer 3

Issue: Whether an individual who has been aggrieved may sue an employer for alleged violation of Title VII?
Rule: A party can sue an employer for a third-party reprisal under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., if the party falls within the zone of interests that Title VII intended to protect.

Question 4

Zone of Interest Test

Answer 4

If the plaintiff’s interest are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.

Question 5

Protected Activity

Answer 5

1. Can claim that they were retaliated against because she “opposed” an unlawful practice.
2. They can allege that they were retaliated against because they “participated” in the more formal enforcement process of the statute.

Question 6

Participation Clause

Answer 6

Title VII makes it unlawful to retaliate against an individual who “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.”
* Prohibits employers from punishing workers who take part in the more formal enforcement processes contemplated by the statute.
Example: It is unlawful to retaliate against someone who has filed a charge of discrimination with the EEOC or who participates in the legal process.
The participation clause applies to all individuals who participate in the statutory complaint process
* Courts have held that an employers is liable for retaliating against an individual filing an EEOC charge regardless of the validity or reasonableness of the charge.
* Covers not only those that file a discrimination charge but all individuals involved in the legal process, such as witnesses.

Question 7

Opposition Clause

Answer 7

Title VII makes it unlawful to retaliate against a worker who “has opposed any practice made unlawful under the employment discrimination statutes.” The retaliation is much broader in terms of the types of acts it covers.

Question 8

Good faith ways employees can complain

Answer 8

• Complaint to boss or HR
• Not participating
• Protest
• Team meeting
• Manager or someone with supervisor authority (perhaps not your own)
• Manual or process for filing internal complaint
• Anonymous complaint (1-800 number or something similar)

Question 9

Adverse Action

Answer 9

• Once a plaintiff has established that she has engaged in protected conduct, she must further demonstrate that she suffered an adverse action.
• Standard of proof of adverse action for retaliation claim is lower than it is for disparate treatment under McDonnell Douglas
• The plaintiff must show that “a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.”