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Meeting of June 17, 2015 - Retaliation in the Workplace: Causes, Remedies, and Strategies for Prevention

Written Testimony of Raymond L. Peeler
Senior Attorney-Advisor
Office of Legal Counsel, EEOC

I. Introduction

Madam Chair and Commissioners, thank you for the opportunity to discuss current issues regarding retaliation, sometimes also known as "reprisal," under EEOC-enforced employment discrimination laws. The Commission's current Strategic Enforcement Plan prioritizes "Preserving Access to the Legal System" and instructs the agency to "target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or [that] impede the EEOC's investigative or enforcement efforts . . . includ[ing] retaliatory actions . . . ."1

Several factors underscore the wisdom of the Commission's decision to adopt this strategic priority. First, retaliation is the linchpin for all civil rights enforcement -- if employees fear the repercussions of filing a charge or complaint, then their rights are unlikely to be enforced. Second, the percentage of EEOC charges alleging retaliation has essentially doubled since the agency adopted its existing Compliance Manual on Retaliation in 1998.2 Third, the law has substantially developed, with seven Supreme Court decisions about retaliation issued since 1998. Finally, several new and important issues have arisen in the lower courts.

II. Surge in Retaliation Charges

On the day that the agency opened 50 years ago,3 and for the next 44 years, the EEOC received more charges of race discrimination than any other category. However, since 2009 retaliation has become the most alleged basis of employment discrimination in the private sector. Even when total private sector charge numbers began to rise in 2007, the increase in the number of charges alleging retaliation far outstripped the increases in total charges - growing by 42%, in comparison to an increase of only 7% for total charge numbers.4 In fiscal year 2014, almost 43% of all private sector charges included a retaliation claim - the highest percentage for any single basis since at least 1997.5 And significantly, the EEOC's rate for finding "reasonable cause" to believe that discrimination has occurred in retaliation charges, although it has declined recently, has exceeded the total "reasonable cause" rate for all charges in seven of the last eight years.6 Finally, the percentage of charges with some form of merit resolution, which include negotiated settlements, withdrawals with benefits, and all conciliations (regardless of success), was greater or equal to the merit resolution rate for all charges combined in six of the last eight years.7

III. Basic Legal Principles

Retaliation occurs when an employer unlawfully takes action against an individual as punishment for exercising rights protected by the equal employment opportunity (EEO) laws. Each law enforced by the EEOC - the Equal Pay Act of 1963, as amended; Title VII of the Civil Rights Act of 1964 as amended; the Age Discrimination in Employment Act of 1967 as amended; Sections 501 and 504 of the Rehabilitation Act; Titles I and V of the Americans with Disabilities Act of 1990, as amended; and Title II of the Genetic Information Nondiscrimination Act of 2008 - prohibits retaliation.8 Retaliation claims may be raised by employees, applicants, and former employees.9

Generally, anti-retaliation laws forbid employers from discriminating against workers because they have engaged in "protected activity."10 Protected activity includes both "participation" in an EEO process or proceeding, such as filing a charge or complaint, or serving as a witness in an investigation, and "opposition" to conduct that a reasonable person would consider discriminatory, such as complaining internally about discrimination,11 refusing to carry out a discriminatory order,12 resisting an unwanted sexual advance,13 writing a letter of complaint to a public official or customer,14 or requesting a reasonable accommodation.15 Importantly, an employee who files a discrimination charge or lawsuit that is ultimately found unmeritorious still may pursue a retaliation claim for employer conduct taken to punish him for the underlying filing.

IV. Supreme Court Rulings on Retaliation

As stated above, the Supreme Court has issued seven decisions addressing retaliation in employment discrimination claims since the Commission issued its 1998 Compliance Manual Section on Retaliation. They include:

  • Clark County School District v. Breeden, 532 U.S. 268 (2001) (holding that conduct is not protected as "opposition" if the matter complained of is so trivial that no reasonable person could have believed it would be unlawful);
  • Burlington Northern and Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006) (adopting the EEOC's view that a "materially adverse action" for retaliation purposes is any action that would deter a reasonable person from engaging in protected activity, which encompasses many more actions than the "adverse action" standard for disparate treatment);
  • Gomez-Perez v. Potter, 553 U.S. 474 (2008) (confirming that the federal government is prohibited from retaliation under the ADEA's broad prohibition that government actions be "made free from any discrimination");
  • Crawford v. Metropolitan Government of Nashville and Davidson County, 555 U.S. 271 (2009) (holding that workers who provide information about harassment that they suffered for internal investigations, at the employer's request, have engaged in protected opposition conduct);
  • Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011) (defining the Fair Labor Standards Act protection for anyone who "files" a complaint as including oral complaints to supervisors, which is the same anti-retaliation provision used under the Equal Pay Act);
  • Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011) (allowing a worker to proceed with a claim that he was fired in retaliation for his fiancé's protected activity, because he was within the "zone of interest" covered by Title VII's anti-retaliation provision); and
  • University of Texas Southwestern Medical Ctr. v. Nassar, 133 S. Ct. 2517 (2013) (requiring "but for" causation for private sector Title VII retaliation claims, meaning that the plaintiff must prove that "but for" the discriminatory intent, the employer would not have taken the same action).

Many of these decisions were consistent with the EEOC's 1998 Compliance Manual, including, most notably, the standard for a materially adverse action in Burlington N. v. White, which cited the Manual extensively to establish its view of actionable conduct.16 The decisions in Crawford v. Nashville, Kasten v. St. Gobain, and Thompson v. North American Stainless also took positions similar to those taken in the 1998 Manual.

However, a few portions of the 1998 Compliance Manual have been superseded or affected by Supreme Court rulings. Most notably, the Supreme Court's 2013 decision in University of Texas SW Med. Ctr. v. Nassar clarified that, while other Title VII claims could be pursued under either a "but for" or a "motivating factor" analysis, retaliation claims could only be established by showing "but for" causation.17 This holding superseded the Commission's position in the 1998 Manual, which stated that "mixed motive" evidence sufficed to prove retaliation as well.18

V. Selected Current Issues

In addition to these settled developments, the courts continue to consider a number of legal issues concerning retaliation. Several examples include:

What actions are materially adverse? The Commission has historically taken the position that a broad array of conduct may be actionable as retaliation - more than under the adverse action standard used for other bases of discrimination. This is because the Commission, affirmed by the Supreme Court in Burlington Northern, has recognized that employees may be deterred from exercising their EEO rights by all sorts of conduct, not simply adverse employment actions. For example, removal of supervisory duties or receipt of an unwarranted unsatisfactory evaluation would deter many employees from pursuing EEO claims. Moreover, even non-employment actions can deter protected activity. For example, one court found actionable retaliation in a law enforcement agency's refusal to investigate death threats against an officer after he filed an EEO complaint, even though the refusal to investigate occurred outside of the officer's employment.19

Although the Supreme Court endorsed this position by defining "materially adverse" to mean any employer action that might deter a reasonable person from engaging in protected activity, the lower courts have not always agreed how to apply the standard, and our stakeholders continue to look for further guidance on this issue. While actionable conduct of course includes firing, demoting, suspending, or docking the pay of workers who engage in protected activity, questions from both plaintiff and employer stakeholders continue to arise about if and when it also should include:

  • Threats of adverse actions that are never taken;
  • Lowered performance appraisals that do not directly affect compensation;
  • Lateral transfers;
  • Schedule changes;
  • Removal of an employee's supervisory duties;
  • Disparagement of a worker in the media;
  • Required re-verification of work status, making threats of deportation, or initiating action with immigration authorities; and
  • Workplace shunning, e.g., excluding the worker from office events or refusing to communicate with him/her.

How should retaliation claims be analyzed when they allege conduct typically associated with hostile work environment complaints? Insults, threats, shunning, and similar actions are commonly alleged in retaliation claims filed with the EEOC.20 Courts have established different analyses for whether (or when) such conduct is actionable, with some identifying a separate "retaliatory harassment" cause of action. Some courts hew to the Burlington Northern v. White standard in all situations, while others have employed the "severe or pervasive" standard that applies to sex, race, or other harassment claims.21 A few courts have created a hybrid - analyzing whether the conduct was severe or pervasive enough to deter a reasonable worker from engaging in protected activity.22 These different analyses lead to different outcomes because conduct that might deter a reasonable person from filing a complaint might not be sufficiently severe or pervasive to meet traditional harassment claim requirements. Given that since 2010, between one-third and one-fourth of all charges alleging retaliation have included the issue of harassment,23 it is important that there be some legal certainty in this area to help stakeholders understand how harassment motivated by retaliation may violate the law.

When is an internal complaint, particularly involving harassment, protected activity? Differing interpretations of another Supreme Court decision - Clark County v. Breeden - have left workers vulnerable to retaliation if they complain about harassing conduct before it becomes unlawful. In Breeden, the Court held that complaining internally about discrimination is only protected activity when a reasonable person would believe that the conduct violates the law.24 While this principle was intended to deny retaliation standing to workers who complain about trivial or frivolous matters,25 it has been used to deny protection for workers complaining about harassing conduct that is not yet severe or pervasive.26 Such an interpretation frustrates the Faragher and Ellerth doctrines by discouraging internal complaints until the harassing conduct has escalated to the point that it is unquestionably severe or pervasive. This approach leaves employees with a choice between complaining about harassment and facing retaliation without recourse, or remaining silent and potentially giving their employer a defense to the harassment because they failed to take advantage of internal grievance procedures.27

The EEOC's Office of General Counsel, with this Commission's approval, recently participated as amicus curiae in Boyer-Liberto v. Fountainbleau Corp., a case concerning this issue, and convinced the en banc Fourth Circuit to overrule precedent and allow protection for workers who complain about harassment that, while not yet actionable, would be viewed by a reasonable person as part of a hostile work environment were it to continue.28 Although the Fourth Circuit's ruling may seem to make common sense, particularly since it concerned racial epithets that the court characterized as "degrading and humiliating in the extreme,"29 it stands in opposition to a series of court decisions reaching a contrary conclusion and leaving employees who complain about unwanted verbal or physical sexual advances that are not yet "severe or pervasive" utterly unprotected from retaliation.

Questions also have arisen about whether rejecting unwanted sexual advances is protected opposition if the employee did not yet complain to human resources. As you will hear in more detail from other witnesses today, in EEOC v. New Breed Logistics,30 the Sixth Circuit Court of Appeals agreed with the Commission that a subordinate's demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII; "[i]f an employee demands that his/her supervisor stop engaging in this unlawful practice-i.e., resists or confronts the supervisor's unlawful harassment-the opposition clause's broad language confers protection to this conduct."31

The importance of the Commission taking a stance in these cases to ensure that employees can exercise their rights under Title VII is clear given the existing confusion in the case law. The fact that these cases persist in 2015 highlights that courts continue to confront unresolved questions on the scope of retaliation protections.

Can employee communications on social media be protected activity, and can employer communications on social media be materially adverse actions?  The Commission and the courts are now being presented with new questions about the role of social media: when can the employer's social media policies or presence be retaliatory? What if the employer monitors the network activity only of those who complain of discrimination?  When can employers be liable for harassment of workers on social media platforms by their peers or supervisors?  Can complaints and comments on social media constitute protected activity?  Can employee communications on social media be sufficient to put the employer on notice of protected activity? 

How does the ADA's "interference" provision protect workers? The ADA is unique among EEOC-enforced laws in that, in addition to an anti-retaliation provision essentially modeled on Title VII's, it includes another prohibition against "interference, coercion, or intimidation" modeled on a Fair Housing Act prohibition and similar to language in the National Labor Relations Act.32 Although some actions may implicate both the ADA's retaliation and interference provisions, the interference provision may prohibit conduct that does not constitute retaliation. Despite the overlap with the frequently alleged retaliation claims, there is very little case law analyzing the ADA interference provision, and it is not mentioned in the 1998 Manual. Anecdotally, it appears that many stakeholders do not know that ADA interference claims even exist, and those that do have questions about what it covers and how it operates.

VI. Conclusion

The EEOC has long worked to enforce the law and educate stakeholders about the laws prohibiting retaliation. As the Supreme Court explained in Burlington Northern v. White, "Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses. 'Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances.'"33 Thus, the EEOC's focus on retaliation and access to justice as new issues arise is not simply a strategic priority for the agency, but it also is a key to enforcing all of the EEO laws. Thank you for your time, and I look forward to your questions.


Footnotes

1 U.S. EQUAL EMP. OPPORTUNITY COMM'N, STRATEGIC ENFORCEMENT PLAN FY 2013 - 2016, part III.B.5., http://www.eeoc.gov/eeoc/plan/sep.cfm (June 5, 2012).

2 In fiscal year 1998, the EEOC received 19,114 charges, while in 2014, it received 37,955. U.S. Equal Emp. Opportunity Comm'n, Retaliation-Based Charges FY1997-FY2014, (chart) http://www.eeoc.gov/eeoc/statistics/enforcement/retaliation.cfm (last visited May 27, 2015).

3 On the EEOC's first day of official business (July 2, 1965), staff were met with 1,000 charges, most of which had been forwarded by the NAACP Legal Defense Fund. U.S. EQUAL EMP. OPPORTUNITY COMM'N, EEOC HISTORY: 35 YEARS OF ENSURING THE PROMISE OF OPPORTUNITY, 1965-1971: A "Toothless Tiger" Helps Shape the Law and Educate the Public, http://www.eeoc.gov/eeoc/history/35th/1965-71/index.html (last visited June 2, 2015).

4 Compare U.S. Equal Emp. Opportunity Comm'n, Charge Statistics FY1997 through FY2014, (chart) http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (last visited May 28, 2015), with Retaliation-Based Charges FY1997-FY2014, supra n. 2. By comparison, increases on other bases included as follows: color 59% (but with very small raw numbers); disability 43%; religion 23%; age 8%; sex 5%; race 2%; national origin 2%.

Although retaliation charges did decline in FY2014 in comparison to the prior year (less than 1%), it was the first decline since 2005, and much smaller than the decrease in total charges filed between FY2013 and FY2014 (down slightly over 5%). Further, in FY2012 and FY2013, when total charges declined, retaliation continued to increase.

5 Charge Statistics FY1997 through FY2014, supra n. 4.

6 The reasonable cause rate for retaliation charges exceeded the reasonable cause rate for all claims generally in every year except for FY2014. Compare id., with Retaliation-Based Charges FY1997-FY2014, supra n. 2.

7 The merit resolution rates for retaliation were greater than or equal to the merit resolution rate for all charges in each of the last eight years except FY2014 and FY2011. The rates were equivalent in FY2009 (20.3%) and FY2013 (18.1%),

8 See Title VII of the Civil Rights Act, Section 704(a), 42 U.S.C. § 2000e-3(a); Age Discrimination in Employment Act, Section 4(d), 29 U.S.C. § 623(d); Americans with Disabilities Act, Section 503, 42 U.S.C. § 12203; Genetic Information Nondiscrimination Act, Title II, Section 207(f), 42 U.S.C. § 2000ff-6(f) .

Section 501 of the Rehabilitation Act, applying to federal employees, incorporates the ADA's retaliation standard. 29 U.S.C. § 791(g). Similarly, retaliation for protected activity under the Equal Pay Act is governed by the Fair Labor Standards Act's prohibition. FLSA Section 15(a), 29 U.S.C. § 215(a)(3) .

9 Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (plaintiff may sue a former employer for retaliation when it provided a negative reference to a prospective employer).

10 Most EEOC-enforced laws use similar, if not almost identical, language to prohibit retaliation. Compare 42 U.S.C. § 2000e-3(a) (Title VII) ("It shall be an unlawful employment practice for an employer to discriminate against any individual … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing….) (emphasis added), with 29 U.S.C. § 623(d) (ADEA), and 42 U.S.C. § 12203 (ADA), and 42 U.S.C. § 2000ff-6(f) (GINA).

The EPA anti-retaliation provision differs by prohibiting discrimination because an individual has "filed any complaint or instituted or caused to be instituted any proceeding … or has testified is about to testify … or has served or is about to serve on an industry committee.". See 29 U.S.C. § 215(a)(3).

11 Boyer-Liberto v. Fontainebleau Corp., --- F.3d ---, 126 Fair Empl. Prac. Cas. (BNA) 1637, 2015 WL 2116849 (4th Cir. 2014) (en banc).

12 Crawford v. Metropolitan Government of Nashville and Davidson County, 555 U.S. 271, 277 (2009) (noting that refusing to fire a junior worker for discriminatory reasons is opposition); EEOC v. HBE Corp., 135 F.3d 543 (8th Cir. 1998).

13 Ogden v. Wax Works, Inc., 214 F.3d 999 (8th Cir. 2000) (a reasonable jury could conclude that confronting supervisor about his sexual harassment was protected opposition).

14 Pearson v. Massachusetts Bay Transp. Auth., 723 F.3d 36 (1st Cir. 2013) (letter to U.S. Senator complaining about racial discrimination in the workplace was protected opposition under Title VII); Sumner v. U.S. Postal Serv., 899 F.2d 203 (2d Cir. 1990) (writing letters to customers criticizing the employer's alleged discrimination listed as an example of protected opposition).

15 Chloe v. City of Indianapolis, 712 F.3d 1171 (7th Cir. 2013) (request for disability accommodation is protected activity); Wright v. CompUSA, Inc., 352 F.3d 472 (1st Cir. 2003) (same); Schellenberger v. Summit Bancorp., Inc., 318 F.3d 183 (3d Cir. 2003) (request for religious accommodation is protected activity).

16 Burlington N. and Santa Fe Rwy. Co. v. White, 548 U.S. 53, 68 (2006).

17 Other issues in the 1998 Manual potentially affected by subsequent Supreme Court decisions include whether, and if so, how the different statutory language for EPA retaliation claims may affect coverage consistent with Kasten v. Saint-Gobain Performance Plastics; what contours of protection are afforded by the "zone of interest" defined in Thompson v. North Am. Stainless; and whether the different statutory language for retaliation claims against federal agencies, as explained in Gomez-Perez v Potter, may require a different analysis.

18 Compare Univ. of Tx. SW Med. Ctr. v. Nassar, 133 S. Ct. at 2528, with EEOC, COMPLIANCE MANUAL, SEC. 8: RETALIATION, available at http://www.eeoc.gov/policy/docs/retal.html (1998) ("If there is direct evidence that retaliation was a motive for the adverse action, 'cause' should be found. Evidence as to any additional legitimate motive would be relevant only to relief, under a mixed-motives analysis.").

19 Rochon v. Gonzales, 438 F.3d 1211 (D.C. Cir. 2006).

20 U.S. Equal Empl. Opportunity Comm'n, Bases by Issue FY 2010 - FY 2014, (chart) http://www.eeoc.gov/eeoc/statistics/enforcement/bases_by_issue.cfm (last visited June 1, 2015).

21 E.g., Roman v. Potter, 604 F.3d 34 (1st Cir. 2010) (applying hostile work environment standards from other Title VII claims to retaliation allegation); Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012) (same).

22 E.g., Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321 (6th Cir. 2008) (plaintiff must prove conduct was so severe or pervasive that it would deter a reasonable person from making or supporting a claim of discrimination).

23 Compare Bases by Issue FY 2010 - FY 2014, supra n. 20, (showing how many retaliation charges allege the issue of "harassment") with Charge Statistics FY1997- FY2014, supra n. 4 (showing total number of charges alleging retaliation).

24 Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001).

25 When the Breeden court found no protected activity, it stressed that the worker, whose duties screening job applicant background information required her to occasionally review sexually explicit materials, complained when her coworkers laughed about a single sexually explicit comment contained in a psychological evaluation report of a job applicant that was not directed at the plaintiff and which the plaintiff admitted did not offend her. Id.

26 E.g., Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006) (finding no protected activity for complaints about inflammatory racially insensitive comment, although it was the stuff that harassment claims are made of, because it was not severe or pervasive and the plaintiff failed to prove that the conduct was likely to continue), overruled in part, Boyer-Liberto v. Fontainebleau Corp., --- F.3d ---, 126 Fair Empl. Prac. Cas. (BNA) 1637, 2015 WL 2116849 (4th Cir. 2014) (en banc); Thomas v. Grinder & Haizlip Constr., 547 F. Supp. 2d 825 (W.D. Tenn. 2007) (finding no protected activity in encouraging coworkers to collectively complain about a supervisor warning a Hispanic worker that if he did not shape up, he would be moved to another work crew with the [n-words]).

27 See Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287 (11th Cir. 2007) (employee's failure to take advantage of counseling program offered to workers to resolve sexual harassment concerns satisfies one element of the employer's defense, as does the employee's failure to promptly report the harassment); Ferraro v. Kellwood Co., 440 F.3d 96 (2d Cir. 2006) (employee's failure to take advantage of the company's reasonable anti-harassment policy permits the employer to assert an affirmative defense to her harassment claim).

28 Boyer-Liberto v. Fontainebleau Corp., --- F.3d ---, 126 Fair Empl. Prac. Cas. (BNA) 1637, 2015 WL 2116849 (4th Cir. 2014) (en banc) (where the conduct is physically threatening or humiliating, the employee will have a reasonable belief that a hostile work environment is occurring and therefore engaged in reasonable opposition by reporting the conduct).

29 Id. at *12.

30 783 F.3d 1057 (6th Cir. 2015).

31 Id. at 1067-68.

32 42 U.S.C. § 12203(b). See H.R. Rep. No. 101-485 (II), at 138 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 421 ("The Committee intends that the interpretation given by the Department of Housing and Urban Development to a similar provision in the Fair Housing Act … be used as a basis for … [the ADA interference provision]."); see also, 29 U.S.C. § 158(a)(1) (making it unlawful under the NLRA for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [the Act]").

33 Burlington N. v. White, 548 U.S. at 67.