Employee: Hi boss, I understand you wanted to see me.
Manager. Yes, thanks for coming in. We need to talk about some things that came up in your performance review.
Employee: I know this hasn't been the best year, but I've had quite a bit on my mind.
Manager. I understand that, and I know the fact that you didn't get that promotion last year hit you hard, but I need a commitment from you. I think you've been too focused on your case you filed claiming you were discriminated against, and I think what you've done by pursuing this leads me to question whether you can be a team player. I just don't think I can give you a satisfactory rating.
Employee: You know that will keep me from my pay increase.
To the uninformed manager, this opening dialogue might appear a reasonable and effective way to address concerns and counsel an employee. However, in light of recent U.S. Supreme Court rulings addressing retaliation against employees for their involvement in discrimination actions, this conversation is fraught with potential legal liability. This article explores what constitutes retaliation within the context of the federal antidiscrimination statutes offering protection to employees at all levels of the government, as well as the private sector. In addition, the article discusses recent Supreme Court rulings expansively interpreting these provisions.
The federal statutes that prohibit discrimination on the basis of race, color, sex, national origin, age, disability, and genetic information, as well as gender-based wage differences, also prohibit retaliation against individuals involved in a claim of discrimination. According to statistics maintained by the Equal Employment Opportunity Commission (EEOC), the number of retaliation claims have increased dramatically during the past decade. In 1998, retaliation claims constituted 24 percent of the claims of discrimination filed under all of the antidiscrimination statutes. In 2008, this number rose to over 34 percent. Claims of unlawful retaliation under Title VII of the Civil Rights Act alone constituted over 30 percent of the total number of claims of retaliation. (1)
Generally, individuals alleging retaliation must establish that they are covered individuals by demonstrating that they engaged in activity protected by a discrimination statute and the employer took an adverse action against them on account of the protected activity. Finally, plaintiffs must be able to show causal connection between the protected activity and the adverse employment.
COVERED INDIVIDUALS ENGAGED IN PROTECTED ACTIVITY
The provisions against retaliation within the antidiscrimination statutes protect covered individuals who engage in a protected activity. A covered individual includes an employee or applicant for employment who has opposed any discriminatory practice by the employer or has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing." (2) Included as well are former employees. (3) For example, making disparaging comments and providing an unsubstantiated negative recommendation to a former employee's prospective employer because of the former employee's past claim of discrimination could be actionable as retaliation despite the lack of a current employment relationship. The activities covered by the employment-related anti-retaliation protections include opposing a discriminatory practice (the opposition clause) and filing a charge of discrimination or testifying, assisting, or otherwise participating in an investigation, proceeding, or hearing addressing a claim of discrimination (the participation clause). (4)
Opposition to a discriminatory employment practice occurs when employees, either directly or indirectly, communicate to their employer a …