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  4. Written Testimony of Lisa J. Banks Partner, Katz, Marshall & Banks, LLP, Washington, D.C.

Written Testimony of Lisa J. Banks Partner, Katz, Marshall & Banks, LLP, Washington, D.C.

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

I. Introduction

Thank you for the opportunity to speak with you today about the pressing need to address retaliation in the workplace, which is among the greatest challenges facing the U.S. Equal Employment Opportunity Commission. There is every indication that instances of employment retaliation are becoming increasingly common in the U.S. and that a robust response from the Commission is required. My goal today is to highlight for you a number of emerging issues in the law of retaliation for which the employment law community could use additional guidance from the Commission. This document shall serve as the written statement I am submitting in connection with the oral testimony I provide during the Commission's June 17, 2015 meeting on Retaliation in the Workplace: Causes, Remedies, and Strategies for Prevention.

According to the most recent charge filing statistics, retaliation claims have become a charging party's most common cause of action, with more than 42% of all charges filed with the EEOC in fiscal year 2014 containing some sort of retaliation claim. This figure marks a substantial increase from the 22.6% of charges that included such claims for fiscal year 1998, suggesting that this development may be a relatively recent occurrence. The cause of this steep and ongoing climb in retaliation-related filings is open to debate. As an attorney who exclusively represents plaintiffs in employment discrimination and retaliation cases, it is my opinion that the increase in retaliation-related filings is partly attributable to the fact that retaliation is very often an emotional response, which is not as effectively ameliorated by training. In contrast, societal mores have arguably evolved to the point where an individual's open expression of racist or sexist beliefs is rare, especially in the workplace, which may account for the decreasing percentage of discrimination claims.

While there is certainly a social stigma attached to expressing racist or sexist beliefs, the same stigma does not necessarily apply to management's retaliatory response to complaints of discrimination. Instead, it appears well-accepted that many management officials will react emotionally and/or rashly under the charged circumstances that often accompany an employee's allegations of racist or sexist conduct, often by taking adverse action against the complaining employee without pausing to consider the legality of their response. We see this surprisingly often in our cases. Other officials may be more nuanced in their retaliatory response, deciding instead to make the employee's working conditions deeply unpleasant but not so overtly intolerable as to rise to the level of an actionable adverse action. Still others take deliberate steps to insulate the individuals possessing a retaliatory motive from the ostensibly neutral decision-maker who ultimately takes the adverse action, in a gambit to break any causal chain that might give rise to a viable retaliation claim.

While no regulatory guidance could prevent the kinds of injudicious emotional responses that lead to actionable retaliation, the Commission would do a substantial service to the U.S. workforce by revising and updating its guidance on retaliation (as is currently set forth in Section 8 of the EEOC Compliance Manual), which it originally drafted in 1998. There have been substantial changes in the law of retaliation in the intervening years, many (but not all) of which benefit U.S. workers, and some of which have come as a direct result of the EEOC's admirable advocacy efforts. The Commission should leverage these advances in the law and reflect those changes in its revised guidance, which will aid employers and legal practitioners in their efforts to navigate the 21st century U.S. workplace and curb retaliation.

II. Background on the Statutory Framework Governing EEOC Retaliation Claims

The general framework governing the analysis of retaliation claims administered by the Commission is by now well-established. Section 704 of Title VII of the Civil Rights Act of 1964 protects an employee from retaliation where that employee (1) opposes discriminatory or harassing practices or (2) participates in an inquiry into discriminatory or harassing practices. Courts throughout the nation have consistently identified three separate elements that must be satisfied to establish a plaintiff's prima facie case of retaliation: (1) the plaintiff engaged in protected activity - i.e., opposition to discrimination or participation in covered proceedings; (2) the employer subjected the plaintiff to an actionable adverse action; (3) there is a causal connection between the plaintiff's protected activity and the adverse action. Below we highlight emerging issues of concern that arise in connection with each of the foregoing elements of a retaliation claim.

III. Element One: Protected Activity

As noted above, Title VII's anti-retaliation provision contemplates that an employee may engage in protected activity where she opposes discriminatory or harassing practices or participates in an inquiry into discriminatory or harassing practices. The following subsections highlight various issues implicating the scope of protected activity, which the EEOC should consider if it chooses to craft revised guidance on retaliation.

A. Emerging Issue: Whether Resisting Sexual Advances Constitutes Protected Activity

There remain differing outcomes among the lower courts (and the Supreme Court has not yet decided) as to whether employee resistance to a supervisor's sexual advances, without more, constitutes protected activity. However, a majority of the courts that have ruled on this issue have held that an employee's refusal to submit to a supervisor's sexual advances constitutes protected activity.1 Given the weight of the authority and the frequency with which this issue arises, the Commission should make clear in its revised guidance on retaliation that resisting a supervisor's sexual advances constitutes protected opposition activity within the meaning of Title VII's anti-retaliation provision.

B. Emerging Issue: Employee Inaction as Protected Activity

Issues of employee inaction also implicate the Title VII's opposition clause and the scope of protected activity. In a recent opinion, the Third Circuit held that Title VII's opposition clause does not protect employees who oppose a policy through inaction.2 The Commission had argued on appeal that the employees' collective refusal to sign releases of claims constituted opposition to unlawful discrimination, but the Third Circuit disagreed, holding that "such inaction does not communicate opposition sufficiently specific to qualify as protected employee activity."3 The Commission should make clear in its revised guidance on retaliation that this decision was wrongly decided and that certain classes of behavior designed to resist policies through inaction can constitute opposition activity.

C. Emerging Issue: Rejection of the Jordan Rule

Courts have long recognized that a plaintiff can prevail on her retaliation claim so long as she possessed a reasonable good faith belief she was engaging in protected conduct, or that the employer was engaging in illegal conduct.4 This means that an employee need not prove that the harassment or discrimination about which she complained was actually unlawful in order to obtain protection under Title VII's anti-retaliation provision.5

The Commission must advise against the sometimes indiscriminate application of Title VII's "reasonable good-faith belief" standard, which can prejudice employees who complain about harassing conduct that, while physically threatening or humiliating to the employee, does not itself rise to the level of an actionable hostile work environment (e.g., isolated racist remarks or the equivalent).

In a recent rehearing en banc, the Fourth Circuit considered such circumstances and wisely overruled a previous case, which had imposed a high bar on plaintiffs who seek to establish protected activity in this very common factual setting - i.e., complaining about sexist or racist remarks. See Boyer-Liberto v. Fontainebleau Corp., No. 13-1473, 2015 WL 2116849, at *1 (4th Cir. May 7, 2015) (overruling Jordan v. Alternative Res. Corp., 458 F.3d 332 (4th Cir. 2006)). 6

In Boyer-Liberto, the Fourth Circuit expressly overruled an aspect of its prior holding in Jordan which had held that an employee could not have possessed a reasonable belief that a Title VII violation was in progress where that employee complained of an isolated racist remark insufficient to create a hostile work environment, absent evidence that a plan was in motion to create such an environment or that such an environment was otherwise likely to occur.7

Departing from its decision in Jordan, the Fourth Circuit instead framed the new inquiry as one which requires a trial court to focus on the "severity of the harassment" when determining whether an employee who reported an isolated incident of harassment had a reasonable belief that she was opposing a hostile work environment in progress.8 In light of this standard, the Fourth Circuit noted that an employee can reasonably believe that a hostile work environment is occurring based on even an isolated incident if that harassment is physically threatening or humiliating.

The Commission, which filed an amicus curiae brief on behalf of the plaintiff in Boyer-Liberto, should revise its retaliation guidance to unambiguously adopt Boyer-Liberto's holding and make clear that the "reasonable good-faith belief" requirement for protected activity in that setting does not mean that an employee must establish an underlying hostile work environment to have engaged in protected activity.

D. Emerging Issue: "Stepping Outside" the Human Resources or Compliance Role for Purposes of Protected Activity

There would significant value in the EEOC weighing in on the plight of employees working in a company's human resources function, who are often left wholly unprotected from retaliation under Title VII and related anti-discrimination statutes. In their daily job duties, HR employees are responsible for bringing discrimination and harassment complaints to management, investigating those complaints, and counseling individual managers regarding wrongdoing. If HR employees are too passive, they may be blamed for letting personnel disputes fester; if they act aggressively, however, they may well face retaliation from unhappy executives.

A number of courts have held that HR employees who report wrongdoing in their roles as HR and compliance officials are not protected from retaliation and must "step outside" that role in order to be protected. This doctrine has had enormous impact on a significant number of employees, who remain unprotected from retaliation, which might flow naturally as a consequence of their job functions. The Commission should ensure that its revised retaliation guidance clarifies the circumstances under which an HR employee engages in protected activity under Title VII and related statutes.

The general climate of managerial hostility towards reports of wrongdoing, as well as overall increased hiring in HR and compliance functions, could potentially cause an uptick in retaliation cases involving employees responsible for compliance in all areas of the law, a trend that will put renewed focus on the Title VII doctrine that HR employees must "step outside" their role in order to be protected from retaliation.9 Given the questionable foundation to the doctrine, as well as a recent Supreme Court case that has cast considerable doubt on its continued viability, this doctrine should not survive, let alone be exported to other retaliation contexts.

The progenitor of the doctrine was McKenzie v. Renberg's Inc., 94 F.3d 1478 (10th Cir. 1996), a Fair Labor Standards Act case in which the plaintiff was the employer's Personnel Director and was responsible for "monitoring compliance" with wage and hour laws.10 In assessing whether the plaintiff had engaged in protected activity under the FLSA, the Tenth Circuit equated "filing a complaint" (protected activity under FLSA) with the assertion of rights "by taking some action adverse to the company."11 The Tenth Circuit thus held that an employee must "step outside" his or her role of representing a company and either file or threaten to file an action adverse to the employer in order gain anti-retaliation protections.12 Because the plaintiff had merely expressed concerns about possible risk to the company, which was her job, she had not "stepped outside her role" nor done anything that would constitute "filing a complaint" and therefore had not engaged in protected activity.13

As is often the case in the civil rights context, a number of courts began to apply the holding to Title VII retaliation claims, without any particular analysis of whether the text of Title VII would justify its application.14 Few courts noted, for example, that unlike the FLSA, Title VII's retaliation provision does not limit protected activity to filing a complaint; rather, it also includes an employee's opposition to conduct made unlawful by Title VII.15 Nonetheless, federal courts put the "step outside" rule to widespread use, leaving many employees unprotected from retaliation under Title VII.16

The imprecise development of the doctrine does not necessarily mean it lacks some foundation within the confines of Title VII. As noted above, Title VII prohibits retaliation against those covered employees who "oppose" conduct made unlawful by Title VII. See 42 U.S.C. § 2000e-3(a). When an HR employee reports discrimination or harassment allegations as part of his or her job duties, it can be difficult to discern whether the employee is "opposing" the conduct that is the subject of his or her reports, or merely reporting facts about which he or she has no particular opinion. It is understandable why employers would want the Commission and the courts to carefully delineate this line.17

The Supreme Court's discussion in Crawford v. Metro. Gov't of Nashville & Davidson County, TN, 555 U.S. 271 (2009), as to what constitutes "opposition" should be instructive on the "step outside" issue. In Crawford, the plaintiff's employer was conducting an internal investigation into alleged sexual harassment by the agency's employee relations director and a management official asked her whether she had witnessed such inappropriate behavior. Id. at 272. The plaintiff informed the interviewer that she had observed sexually inappropriate behavior and had in fact repeatedly been the victim of such behavior. Id. While she had not initiated the complaint, the plaintiff and the other two accusers were terminated shortly after the conclusion of the investigation. Id. The District Court and the Sixth Circuit held that Ms. Crawford had not met the standard for "opposition" because she had not initiated the complaint, but rather had only passively answered questions pursuant to an internal investigation. Id. at 274. The Supreme Court, noting that the phrase "oppose" was not defined in Title VII, applied the ordinary dictionary meaning of the word and held that "opposition" requires nothing more active than expressing an opinion resistant to or disapproving of the alleged discriminatory behavior. Id. It also noted that this result was consistent with EEOC guidelines: "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." Id. at 276 (quoting 2 EEOC Compliance Manual §§ 8-II-B(1), (2), p. 614:0003 (Mar. 2003)).

Thus, the complainant in Crawford was not an HR employee; she was merely an employee who provided information during the course of an investigation. Additionally, although the opinion is silent on the issue, presumably she was obligated to answer questions during the investigation and/or understood herself to be. Indeed, it is a staple of the internal corporate investigation that an employee must participate or face possible discipline. In light of these factors, it is therefore no strain to read Crawford as holding that an employee who merely provides information regarding sexual harassment in the course of his or her job duties engages in oppositional conduct for purposes of Title VII.

Given that holding, it is difficult to see what space remains for determining that an HR employee must "step out" of his or her role in order to claim protection under the same provision.18 At least one court, however, has found such space. See Brush v. Sears Holding Corp., No. 11-1065, 466 Fed. Appx. 781 (11th Cir. March 26, 2012).19 The Eleventh Circuit in Brush upheld the trial court's grant of summary judgment to the employer, reading Crawford to stand for the proposition that an employee's "opposition was no less actionable because she had been asked about sexual harassment rather than having volunteered such allegations."20

The Eleventh Circuit in Brush considered it critical that the Crawford plaintiff had been "directly impacted by workplace discrimination."21 The plaintiff in Crawford had been providing information of inappropriate conduct committed against her, even though she was not the victim in the complaint being investigated. The Brush court refused to "extend" the Crawford holding "to all individuals involved in the investigation of that discrimination, no matter how far removed."22 Crawford, the Eleventh Circuit held, did not extend to "disinterested" parties, and therefore did not undermine what the Eleventh Circuit characterized as the notion that "a management employee, who in the course of her normal job performance, disagrees with or opposes the actions of an employer does not engage in 'protected activity.'"23 According to the court, since the plaintiff in Brush had reported the sexual allegations merely in her capacity as an investigator, she had not engaged in protected activity.24

It is my opinion that the Brush opinion is flawed in at least three ways and that the Commission's revised guidance should reflect the EEOC's disagreement with that imprudent decision.25 First, Brush misreads Crawford. The lynchpin of Brush was that, unlike the plaintiff in Crawford, Ms. Brush was a "bystander" or a "disinterested" party to the allegations at issue; she was not a victim. However, this distinction was nowhere mentioned (or even reserved) in Crawford itself. Crawford was a unanimous 9-0 decision and, although Justice Alito (with Justice Thomas joining) wrote a concurrence, he did so out of concern that the majority's opinion might be read to transform "silent" conduct into "oppositional" activity within the meaning of Title VII.26

Second, Brush's logic would extend to an employee in an investigation who did not suffer harassment but merely observed it and, in response to questioning, recounted what he or she had seen. Neither the majority in Crawford nor Justice Alito in the concurrence suggested that a "mere" witness who provided information during an internal investigation would not be protected. To the contrary, the concurrence accurately summarizes the majority's holding as embracing protection for the "mere" witness.27 Unremarkably, other courts have applied Crawford to "mere" witnesses.28

Third, the Eleventh Circuit in Brush never explains why, as a matter of language or policy, a "disinterested" person has to "step out" of his or her role to "oppose" unlawful conduct. This omission is revealing because there is, it would seem, a straightforward reason. At the core of Crawford was the common sense notion that someone who reports unlawful conduct, by definition, opposes that conduct. This assumption is strongest where the person is reporting unlawful conduct of which they were a victim; it weakens somewhat when the person is a "bystander" or "disinterested" witness; it is weakest still when the report is "compelled" to provide the information, as when it is a person's job to report the allegations and facts. But this formulation assumes one studies the assumption in a vacuum and it is that larger context which Brush ignores. Crawford did not make distinctions among the types of people who report information because the Court was willing to assume that even the person who is "compelled" to report unlawful conduct endangers his or her position by reporting it. In that sense, all reporting is "opposition."

It is difficult to understand how the "step outside" doctrine should survive Crawford. If it does, it will be because management counsel provide - and courts more forthrightly explain - a policy justification for being able to terminate HR employees who report wrongful conduct. But it is difficult to accept such a rationale, and the Commission should decline to do so. Employers argue that eliminating the "step outside" doctrine would effective immunize HR employees from discipline. As with any employee who has engaged in protected activity, however, an employer remains free to discipline the employee so long as they do not do so because the employee has engaged in protected activity.29 And there are a number of sound reasons (all of which promote Title VII's statutory purpose) for protecting such reports. At a basic level, it seems nonsensical to exclude from protection the very officials most likely to discover, investigate, and report the type of activity made unlawful by Title VII.30 It is also apparent that HR and compliance officials are often the very vehicles by which employees "oppose" unlawful conduct. Indeed, federal law and resulting corporate policies have established precisely that system.31 It is inconsistent with the broad remedial purposes of Title VII to protect employees who file complaints, but to leave unprotected the employees who investigate the complaints and report their findings to senior management. The Commission should be mindful of this issue as it contemplates revisions to its guidance on retaliation and take steps to ensure that Title VII protects HR and compliance employees, consistent with the Supreme Court's edict in Crawford.

E. Emerging Issue: Wage Disclosure Prohibition Policies

The EEOC's revised guidance on retaliation should make clear that, except in very limited instances, an employer's attempt to enforce prohibitions on the voluntary discussion by and between employees regarding wages constitutes unlawful retaliation in violation of anti-discrimination statutes. In doing so, the EEOC would join President Barack Obama, who signed Executive Order 13665 on April 8, 2014, to prohibit federal contractors from taking adverse action against employees who discuss their compensation packages. President Obama's Executive Order framed the pressing need for executive action in skillful fashion:

When employees are prohibited from inquiring about, disclosing, or discussing their compensation with fellow workers, compensation discrimination is much more difficult to discover and remediate, and more likely to persist. Such prohibitions (either express or tacit) also restrict the amount of information available to participants in the Federal contracting labor pool, which tends to diminish market efficiency and decrease the likelihood that the most qualified and productive workers are hired at the market efficient price. Ensuring that employees of Federal contractors may discuss their compensation without fear of adverse action will enhance the ability of Federal contractors and their employees to detect and remediate unlawful discriminatory practices, which will contribute to a more efficient market in Federal contracting.

The Department of Labor noted in its proposed rule to implement this executive action that Lilly Ledbetter's employer had enforced pay secrecy policies, which harmed Ms. Ledbetter's ability to uncover pay inequities (which she discovered only because an anonymous note was left in her mailbox, which disclosed her pay and the pay of three male co-workers performing the same job) and ultimately obstructed her ability to bring viable causes of action against her employer.32 Indeed, pay secrecy policies makes it virtually impossible for employees to uncover or effectively pursue claims of pay discrimination, which of course is their purpose. Unable to accurately assess the viability of a Title VII or EPA pay discrimination claim, an employee who suspects pay discrimination is left only with the option of filing a lawsuit to secure access to pay information through discovery - an option that many employees will not pursue. Tellingly, only employers who engage in sex-based wage discrimination (or some other prohibited basis) need or will extract real value from pay secrecy policies, as employers who do not similarly discriminate have nothing to fear from an open discussion of compensation packages by and between co-workers.

F. The Scope of Participation Activity

The scope of participation activity essentially tracks the statutory definition, i.e., having "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a). In a case analogous to Crawford, supra, the Eleventh Circuit considered Title VII's participation clause and rejected an employer's argument that an employee's participation in an internal investigation, which an employer launched in response to its receipt of an EEOC charge, should not be treated as protected activity.33 It is important to note, however, that the Crawford holding is broader than this Eleventh Circuit decision, in that the former does not require the internal investigation be made pursuant to an EEOC investigation.34 The Commission's revised guidance on retaliation should make clear that Title VII's participation clause does not require that an internal investigation be launched by an employer pursuant to its receipt of an EEOC charge in order for an employee's participation in that inquiry to qualify as protected participation activity.

IV. Element Two: Adverse Action

The second element of the plaintiff's prima facie retaliation case requires a plaintiff to prove that the employer subjected the plaintiff to an adverse action. The EEOC has advanced a broad definition of the types of employer treatment that constitute an adverse action.35 The Commission's expansive definition of adverse action was a crucial response to courts that had restricted adverse actions to "ultimate employment actions" (i.e., discharge or denial of promotions). The Commission rightly determined that this interpretation of adverse action was "unduly restrictive," as the anti-retaliation provisions in question clearly "prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity."36

The Supreme Court addressed this issue in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006), where it unanimously adopted a broad, objective standard of adverse actions similar to the Commission's recommended definition. Prior to Burlington Northern, a number of courts had adopted a restrictive view of what constitutes adverse action for retaliation claims under Title VII.37 The Supreme Court rejected that view and instead held that anti-retaliation protections extend to employer actions that are not "ultimate actions," are not employment-related, and that occur outside of the workplace.38 The Burlington Northern standard for adverse action requires only that the plaintiff show that "a reasonable employee would have found the challenged action materially adverse" and that challenged action "might well have dissuaded a reasonable worker from [protected conduct]."39

The courts quickly adopted the Burlington Northern standard.40 Despite the attempts of some courts to advance a more conservative interpretation of adverse action41, the Burlington Northern standard is a strong victory for workers, and the Commission's revised guidance on retaliation will undoubtedly reflect the expansive nature of this standard for actionable adverse actions.

A. Emerging Issue: Analysis of Retaliatory Harassment for Federal Sector Workers

The Commission should adopt a position in its revised retaliation guidance clarifying that a federal sector worker can invoke Burlington Northern's definition of adverse action to establish the existence of retaliatory harassment, rather than require that federal sector worker to satisfy the more stringent "severe and pervasive" standard for retaliatory harassment (which courts normally reserve for plaintiffs who seek to establish harassment as a stand-alone claim). This issue emanates from Title VII's differing statutory structure for private sector and federal sector workers, and government employers have arguably exploited otherwise unremarkable differences in statutory structure to avoid the impact of Burlington Northern's expansive definition of adverse action. Importantly, and unlike Title VII's provisions that apply to private sector employees, see 42 U.S.C. § 2000e-2(a) (anti-discrimination) and 42 U.S.C. § 2000e-3(a) (anti-retaliation), Title VII does not include a separate anti-retaliation provision for federal sector workers. The sole provision of Title VII that governs anti-discrimination in federal employment states that "[a]ll personnel actions affecting [federal] employees or applicants for [federal] employment . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a) (emphasis added). Despite the lack of an express anti-retaliation provision, it has long been acknowledged that Title VII prohibits federal employers from retaliating against federal employees.42 This is because, as the Supreme Court made clear in Gomez-Perez v. Potter, 553 U.S. 474, 479 (2008), employer retaliation is one kind of "discrimination" that Congress intended to prevent through passage of various anti-discrimination statutes, including Title VII's federal sector provision and the ADEA (which the Supreme Court interpreted in Gomez-Perez, and on which Congress based Title VII's federal sector anti-discrimination provision).

To defeat retaliation claims of the variety involving federal sector employees who allege their employers subjected them to retaliatory harassment in response to protected activity, federal employers have sought to leverage Title VII's differing statutory structure and make it more difficult for federal sector employees to prevail. Specifically, the government employer contends that the term "[a]ll personnel sections" in the federal sector Title VII anti-discrimination provision - 42 U.S.C. § 2000e-16(a), which, consistent with the rationale of Gomez-Perez, implicitly prohibits retaliation - means that only ultimate employment actions like termination or failure to promote constitute actionable "personnel actions" for purposes of establishing a federal sector Title VII retaliation claim. According to this argument, "personnel actions" do not include the lesser form of adverse actions which, while perhaps capable of dissuading a reasonable worker from engaging in protected conduct within the meaning of Burlington Northern, do not constitute discrete personnel actions within the meaning of the federal sector Title VII anti-discrimination provision, 42 U.S.C. § 2000e-16(a). And in the all too common instance where a federal sector employee experiences a series of lesser actions that together constitute retaliatory harassment, federal employers might contend that the employee must establish this series of actions was sufficiently "severe and pervasive" so as to "alter the conditions of [the federal sector worker's] employment and create an abusive working environment."43 The Commission should make clear in its revised guidance on retaliation that it rejects this exercise in semantics, which relies on a strained reading of Title VII's structure, and unambiguously state that Burlington Northern's definition of adverse action applies to federal sector workers who allege retaliatory harassment.

V. Element Three: Causal Connection

A. Emerging Issue: Nassar and But-for Causation

In order to establish the final element for a prima facie case of retaliation, a plaintiff must demonstrate the existence of a causal connection between her protected activity and the employer's adverse action. The Supreme Court most recently addressed this element in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2534 (2013), holding that an employee's protected activity must be a "but-for" cause of the employer's adverse action to constitute actionable retaliation within the meaning of Title VII.44 The Supreme Court noted in Nassar that "the text, structure, and history of Title VII demonstrate that a plaintiff making a retaliation claim under § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer."45 Meeting this standard requires a plaintiff to show that "but-for" the retaliatory motive, she would not have suffered the challenged adverse action.46

While employee rights advocates expressed alarm about the manner in which Nassar would undermine a plaintiff's ability to bring a viable retaliation claim, and some employers began to argue that "but for" cause meant "sole" cause, a subsequent Supreme Court decision in the following term made clear that the "but-for" standard of causation was not as onerous as assumed by some. In Burrage v. United States, 134 S. Ct. 881 (2014), the Supreme Court clarified the meaning of the "but-for" causation standard in analyzing the causation standard of the Controlled Substances Act ("CSA"). The Court expressly equated the CSA's "resulted from" standard with the "but-for" standard it had delineated in Nassar.47 The Court explained that an act is a "but-for" cause "[even if it] combines with other factors to produce the result, so long as the other factors alone would not have done so - if, so to speak, it was the straw that broke the camel's back."48

Subsequent judicial interpretation of Nassar in light of Burrage has shown that Nassar's "but-for" standard does not require a plaintiff to prove that the employer's retaliatory motive was the exclusive cause of a challenged adverse action. In Roberts v. Alabama Dep't of Youth Servs., the court relied on Burrage to deny the defendant's motion for summary judgment on a Title VII retaliation claim.49 The trial court held that the plaintiff presented sufficient evidence to "create a genuine issue of material fact as to whether the EEOC charge was the straw that broke the camel's back," even if the act was not the "sole" cause of the plaintiff's termination.50 Even before Burrage, however, the Second Circuit limited the scope of Nassar's application, noting that the "but-for" standard of causation "does not require proof that retaliation was the only cause of the employer's action, but only that the adverse action would not have occurred in the absence of the retaliatory motive."51 Consistent with the Supreme Court's guidance in Burrage, the Commission should join with the Second Circuit and other courts to make clear in its revised guidance on retaliation that the Nassar "but-for" standard of causation did not dramatically alter a plaintiff's burden of proof in a retaliation case.

B. Emerging Issue: Cat's Paw Theory of Liability

In assessing the causal relationship between an employee's protected activity and a challenged adverse action, the Commission should be clear in its revised retaliation guidance that the EEOC will vigorously enforce the so-called "cat's paw" theory of liability, which contemplates that an employer is liable for retaliation where an apparently neutral management official who lacks a retaliatory motive takes adverse action against an employee, so long as individual who harbored a retaliatory motive impermissibly influenced the neutral official's actions. This implicates an increasingly common issue in retaliation cases, perhaps in part because management officials have grown savvier about taking retaliatory action against employees and now take certain steps to insulate the ultimate decision-makers from those possessing retaliatory motive, which better allows the employer avoid liability for ridding itself of perceived troublemakers.

The Supreme Court sanctioned this doctrine in Staub v. Proctor Hosp., 131 S. Ct. 1186, 1193-94 (2011), holding unanimously that an employer can be charged with discriminatory intent where a non-decision maker (such as a lower-level supervisor) intending to retaliate against an employee takes steps to influence the higher-level management official's decision to take an adverse action. Consistent with Staub, "cat's paw" liability for retaliatory acts can attach where (1) an employee's supervisor takes a personnel-related step (a written reprimand, for instance) for an impermissibly biased reason; (2) the supervisor intends for that step to prompt the employer to take adverse action against the employee; and (3) the supervisor's step is found to be the "proximate" cause of the ultimate adverse action decision (i.e., the decision to fire the employee because of the written reprimand), even if the actual decision-maker does not harbor retaliatory animus. Id. The Commission's revised guidance on retaliation should encompass Staub's holding and stave off employer efforts to avoid liability for adverse actions that are caused by retaliatory motives.

Footnotes

1See, e.g., Little v. Nat'l Broad. Co., 210 F. Supp. 2d 330, 385-86 (S.D.N.Y. 2002) (collecting cases). The Second, Third and Seventh Circuits have all noted this issue in passing but declined to rule upon it. Id. at 385 (collecting cases). See also Del Castillo v. Pathmark Stores, Inc., 941 F. Supp. 437, 438-39 (S.D.N.Y. 1996) (holding that refusal to submit to sexual advances does not constitute protected activity because "[i]f it were otherwise, every harassment claim would automatically state a retaliation claim as well."); Burrell v. City Univ. of New York, 894 F. Supp. 750, 761 (S.D.N.Y. 1995) (holding that refusal to submit to sexual advances constitutes protected activity).

2 See E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 452-53 (3d Cir. Feb. 13, 2015).

3 Id. at *6; see also E.E.O.C. v. SunDance Rehab. Corp., 466 F.3d 490, 501 (6th Cir. 2006) (expressing skepticism that declining to sign a release could be protected activity).

4See Bianchi v. Philadelphia, 183 F. Supp. 2d 726, 739 (E.D. Pa. 2002) (internal citations omitted); E.E.O.C. v. Luce, Forward, Hamilton, & Scripps, 303 F.3d 994, 1005 (9th Cir. 2002); see also Evans v. Port Auth. of N.Y. & N.J., 192 F. Supp. 2d 247, 278 (S.D.N.Y. 2002) ("If anything, the evidence supporting a finding of retaliation is stronger than the evidence supporting a finding of discrimination because the jury need not take the logical step from plaintiff's [protected conduct] to his race.").

5 Zann Kwan v. Andalex Group LLC, 737 F.3d 834, 843 (2d Cir. 2013) (quoting Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012).

6 Boyer-Liberto involved allegations that a Caucasian management official angrily referred to the plaintiff (an African-American cocktail waitress) as a "porch monkey" and thereafter threatened the plaintiff's job. The employer fired the plaintiff shortly after she complained to management about her supervisor's racist statements and abusive conduct, and the plaintiff brought claims against the employer on the basis of a racially hostile work environment and retaliation, under both Title VII and 42 U.S.C. § 1981. The trial court awarded summary judgment to the employer on all claims and a divided Fourth Circuit panel affirmed that ruling, which prompted the full Fourth Circuit to rehear the matter en banc. Boyer-Liberto, 2015 WL 2116849, at *1.

7 Boyer-Liberto, 2015 WL 2116849, at *14 (quoting Jordan, 458 F.3d at 340).

8 Id. at *16.

9See, e.g., Riddle v. First Tenn. Bank, No. 3:10-cv-0578, 2011 WL 4348298, at *8 (M.D. Tenn. Sept. 16, 2011) (citing Title VII authority in the Sarbanes-Oxley context to hold that plaintiff, an investigator, was required to "step outside" his role and did not engage in protected activity where he was "merely performing his job duties"); Barker v. UBS, 888 F. Supp.2d 291, 297 (D. Conn. 2012) (referring, in the Sarbanes-Oxley context, to the "step outside" rule).

10 The employer fired the plaintiff after she raised concerns that a number of employees were "not receiving proper compensation for working overtime." Id. at 1481 She brought a retaliation claim under the Fair Labor Standards Act ("FLSA"), which makes it unlawful for an employer to discriminate against any employee because the employee has "filed any complaint." 29 U.S.C. § 215(a)(3).

11 McKenzie, 94 F.3d at 1486 (emphasis added).

12 Id.

13 Id. at 1486-87.

14 See, e.g., EEOC v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998) (applying the rule, without discussion, in the Title VII context but finding that plaintiff did "step out" of his role as Director of Personnel when he "refused to implement a discriminatory company policy").

15 For a good discussion of whether the "step outside" doctrine should apply to "opposition" language like that contained in Title VII, see Lodis v. Corbis Holdings, Inc., 292 P.3d 779, 786-89 (Wash. Ct. App. 2013).

16 See, e.g., DeMasters v. Carilion Clinic, Civil Action No 7:12-cv-580, 2013 WL 5274505, at *8-9 (W.D. Va. Sept. 17, 2013); Cyrus v. Hyundai Motor Mfg., Civil Action No. 2:07cv144-ID, 2008 WL 1848796, at *11-12 (M.D. Ala. April 24, 2008); Bradford v. UPMC, No. 02:04cv0316, 2008 WL 191706, at *4 (W.D. Pa. 2008); Vidal v. Ramallo Bros. Printing, Inc., 380 F. Supp.2d 60, 62 (D.P.R. 2005). But see Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000) (noting that "the fact that Plaintiff may have had a contractual duty to voice . . . concerns is of no consequence" to his retaliation claim under Title VII); Rangel v. Omni Hotel Mgmt. Corp., Civil Action SA-09-CV-0811 OG (NN), 2010 WL 3927744, at *4 (W.D. Tex. Oct. 4, 2010).

17 Cf. Hagan, 529 F.3d at 627-28 (noting this rationale in the FLSA context). Still, the important point to note is that this is a factual issue - i.e., whether someone has "opposed" unlawful conduct - and it is unclear why HR employees, alone among employees, should have to "step outside" their role and adopt a stance of adversity to the company under a statute that requires mere "opposition." See Ezuma v. City Univ. of New York, 665 F. Supp. 2d 116, 120-24 (E.D.N.Y. 2009) (finding that "stepping out" cases "overstate the concern about excessively protecting human resources managers" and that the relevant question is whether the actions of the employee, as a factual matter, amount to opposition; denying summary judgment in a case where plaintiff forwarded an allegation of sexual harassment involving a colleague in his department).

18See Schanfield v. Sojitz Corp., 663 F. Supp. 2d 305, 341-42 (S.D.N.Y. 2009) (rejecting the argument, in light of Crawford, that an employee's reports as part of their job duties should not be protected under Title VII); Kerstetter v. Pa. Dep't of Corrs., No. 4:08-CV-1984, 2010 WL 936457, at *11 (M.D. Pa. March 12, 2010) (same).

19 Brush involved a Title VII retaliation claim brought by a Loss Prevention District Coach who was involved in investigating a report of sexual harassment by an employee (including an allegation that she had been raped). Id. at *784. The plaintiff reported what the employee told her to a supervisor and to the company. Id. When the company declined to report the rape to the police, the plaintiff "continued to urge the reporting of the alleged rape." Id. Shortly after the investigation concluded, the employer terminated the plaintiff, who filed a retaliation claim under Title VII.

20 Id. at *786-87; see also id. at *787 (noting that Crawford protected reporting that was "solicited rather than volunteered").

21 Id. at *786-87.

22 Id. at *787.

23 Id.

24 Id. See also DeMasters v. Carilion Clinic, Civil Action No 7:12-cv-580, 2013 WL 5274505, at *9 (W.D. Va. Sept. 17, 2013) (discussing Brush and finding a "fundamental difference" between "voicing criticism" of a sexual harassment investigation and "championing" the underlying allegations); Dunn v. Wal-Mart Stores E., L.P., 1:11-CV-21756, 2013 WL 145532, at *7 (S.D. Fla. Apr. 9, 2013) (following Brush); Rice v. Spinx Co., Inc., 6:10-CV-1622-JMC-JDA, 2011 WL 7450630 (D.S.C. Nov. 10, 2011) report and recommendation adopted, CIV.A. 6:10-01622, 2012 WL 684019, at *3 (D.S.C. Mar. 2, 2012) (following McKenzie after Crawford).

25 It is worth noting that the Brush court may have been skeptical of the plaintiff's case in a more general sense. The court noted that Sears had put Ms. Brush on a performance improvement plan ("PIP") the previous year and the PIP was set to expire in the days after she first began her work on the investigation. Id. at *783-84. The court also noted that Ms. Brush waited nearly two years after an EEOC determination to file suit against Sears. Id. at *784.

26 Id. at *281-82.

27 Id. at *280 (agreeing with the majority that Title VII prohibits retaliation "against an employee who testifies in an internal investigation of alleged sexual harassment").

28See, e.g., Sayger v. Riceland Foods, Inc., 735 F.3d 1025, 1032 (8th Cir. 2013) (concluding, in light of Crawford, that a witness in an internal investigation engaged in protected activity under § 1981); Kerstetter, 2010 WL 936457, at *11 (holding under Crawford that a witness in an internal investigation engages in protected activity, but finding that the witness's testimony did not relate to conduct made unlawful under Title VII).

29Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2523 (2013) (discussed below).

30See Rangel v. Omni Hotel Mgmt. Corp., Civil Action SA-09-CV-0811 OG (NN), 2010 WL 3927744, at *4 (W.D. Tex. Oct. 4, 2010) (refusing to apply the "step outside" rule to a Title VII case because it would "strip" Title VII protection from "employees who are in the best positions to advise employers about compliance").

31See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (establishing affirmative defense for employee if "the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise").

32 See Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).

33See Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1353 (11th Cir. 1999) ("Here, we recognize that, at least where an employer conducts its investigation in response to a notice of charge of discrimination, and is thus aware that the evidence gathered in that inquiry will be considered by the EEOC as part of its investigation, the employee's participation is participation "in any manner" in the EEOC investigation. Accordingly, by participating in her employer's investigation conducted in response to an EEOC notice of charge of discrimination, Clover engaged in statutorily protected conduct under the participation clause.").

34See E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000) (employee's participation in an internal investigation does not amount to protected activity where "no pertinent employee had filed a charge with the EEOC year, nor had the employer received one from the EEOC").

35 See EEOC Compliance Manual, Section 8, at 11.

36 See EEOC Compliance Manual, Section 8, at 13-14 (collecting cases).

37See Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 902 (7th Cir. 2003); Krause v. City of La Crosse, 246 F.3d 995, 1000-01 (7th Cir. 2001); Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997), abrogated by Burlington Northern, 548 U.S. 53, 126 S.Ct. 2405, ("To hold otherwise would be to expand the definition of "adverse employment action" to include events such as disciplinary filings, supervisor's reprimands, and even poor performance by the employee - anything which might jeopardize employment in the future. Such expansion is unwarranted."); see also McGuire v. City of Springfield, Ill., 280 F.3d 794, 797 (7th Cir. 2002) ("An employer's action can be called 'retaliation' only if it makes the employee worse off on account of the protected activity.").

38 See Burlington Northern, 548 U.S. at 62-68. The employer in Burlington Northern transferred the plaintiff to a less desirable position after the plaintiff complained about gender discrimination, and later suspended the plaintiff for insubordination after she complained about the transfer. Id. at 63. The Supreme Court found that these discriminatory acts fell within the definition of "adverse action" under anti-retaliation laws, but, in expanding the definition, emphasized that an employee is not protected from any trivial act by an employer that creates a minor annoyance. Id. at 67-68. Instead, the context of the employer's act controls the outcome: "the significance of any act of retaliation will often depend upon the particular circumstances." Id. For example, 'a supervisor's refusal to invite an employee to lunch is normally trivial, a non-actionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement might well deter a reasonable employee from complaining about discrimination." Id. at 67-70.

39 Id. at 67-68.

40See, e.g., See O'Neal v. City of Chicago, 588 F.3d 406, 410 (7th Cir. 2009) (holding that reassignments of plaintiff were adverse actions because they were repetitive and negatively affected the employee's opportunities for advancement); Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1090 (10th Cir. 2007) (denying summary judgment because defendants' threats to ruin plaintiff's family and marriage and opposition to her employment benefits constituted adverse actions that would have dissuaded a reasonable person from engaging in protected activity); Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 19, (1st Cir. 2006) (adopting the Burlington Northern standard despite the finding that the employer's delays in fulfilling the plaintiff's request for accommodation were not sufficient to prove adverse action).

41See Clark v. Potter, No. 1:05-CV-201-TWT, 2006 WL 2520348, at *11 (N.D. Ga. Aug. 30, 2006) (holding that although the new standard for adverse actions "falls short of ultimate employment decisions," the plaintiff must still demonstrate "some threshold level of substantiality," finding that employer's denial of FMLA leave, a letter of warning, and a 7-day suspension did not meet the threshold) (internal quotes omitted); Martin v. Merck & Co., Inc., 446 F. Supp. 2d 615, 638, (W.D. Va. 2006) (holding that the defendant removing plaintiff "from the relief operator position fails to support a prima facie case of retaliation because it would not dissuade a reasonable worker from making or supporting a charge of discrimination" by emphasizing that trivial incidents are still insufficient to support a claim of retaliation under the Burlington standard).

42See, e.g., Hale v. Marsh, 808 F.2d 616, 619 (7th Cir. 1986); Ayon v. Sampson, 547 F.2d 446, 450 (9th Cir. 1976).

43Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 62 (1986).

44 In Nassar, the plaintiff claimed that he was denied a job after he had complained to management about discrimination and harassment to which he had been subjected. There was little doubt that the plaintiff's complaint was one of the reasons for job denial, but there were also other, nondiscriminatory reasons motivating the employer's decision to withhold the promotion. Although the Fifth Circuit upheld the trial court's determination that the employer had retaliated against the plaintiff - holding in the process that a plaintiff need show only that retaliation was a motivating factor for the retaliation - the Supreme Court reversed the Fifth Circuit, noting that the standard of causation employed by the Fifth Circuit was incorrect. Prior to the Court's decision in Nassar, many courts had required only that the protected activity be a motivating factor for the adverse action, such that an employer retaliated against a plaintiff at least in part because of his or her protected activity.

45 133 S. Ct. at 2534.

46 133 S. Ct. 2517, 2533.

47 See Burrage at 884.

48 Id. at 888.

49 See No. 2:13CV335-MHT, 2015 WL 590179, at *5 (M.D. Ala. Feb. 11, 2015).

50 Id. (internal citations omitted.)

51Zann Kwan v. Andalex Group, 737 F.3d 834, 845-46 (2d Cir. 2013).