Once you have complained about discrimination you have engaged in what is referred to as “protected activity”. Any adverse action that your employer takes against you after this point could be used to demonstrate that it was taken in retaliation for your engaging in this protected activity. So, for example, if you file a complaint with the EEOC claiming you were discriminated against and one week later you were terminated, you could file a separate claim alleging that your discharge was in retaliation for having filed a complaint. Employers are not allowed to retaliate against employees for engaging in protected activity.
OVERVIEW OF RETALIATION ACTION
Title VII prohibits an employer from retaliating against an employee who complains about discrimination and/or harassment. “Under 42 U.S.C. § 2000e-3(a), an employer may not retaliate against an employee who has either opposed any practice made unlawful under Title VII or has made a charge or participated in any matter in an investigation of sexual harassment.” Velez Cortes v. Nieves Valle 253 F.Supp.2d 206, 214 (D.Puerto Rico,2003).
ELEMENTS OF A RETALIATION ACTION
Courts use the same three-prong analysis they used for Title VII cases for retaliation cases. Thus, the plaintiff must first prove a prima facie case of retaliation. The burden then shifts to the defendant to show a legitimate non-discriminatory reason for the action taken and the plaintiff would then have to demonstrate that the reason the employer proffered was in fact pretextual. “In order to set forth a claim for retaliation the plaintiff must demonstrate a prima facie case of retaliation. Then the defendant must point to evidence of a legitimate non-retaliatory reason for the complained of action. If the defendant meets its burden, plaintiff must “demonstrate that there is sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a pretext for impermissible retaliation.” Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir.1998).” Gilford v. City of New York 2004 WL 1574695, *5 (S.D.N.Y.,2004).
Accordingly, the first hurdle that plaintiffs must meet is to establish a prima facie case of retaliation. Courts have set forth the essential elements a plaintiff would have to prove to establish a retaliation cause of action “To establish a prima facie case of retaliatory discrimination, Soto must establish the following four elements: (1) [she] engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal connection between participation in the protected activity and the adverse employment action. Id. at 713- 14. (citations omitted). Gagnon v. Sprint Corp., 284 F.3d 839, 850 (8th Cir.), cert. denied, 537 U.S. 1001, 123 S.Ct. 485, 154 L.Ed.2d 396 (2002); see Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 685 (8th Cir.2001); Buettner, 216 F.3d at 713-714. In addition to these requirements, the plaintiff must show that a reasonable person could believe that the alleged incidents would violate Title VII’s standard. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 271, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)”. Soto v. John Morrell & Co. 285 F.Supp.2d 1146, 1176 (N.D.Iowa,2003). See also, Fortner v. Ameritech Corp. 50 Fed.Appx. 187, 188-189, 2002 WL 31379880,*2 (6th Cir.Mich. 2002)(“In order to establish a prima facie case of retaliation, the plaintiff must prove that: “(1) he engaged in activity protected by Title VII; (2) the exercise of his civil rights was known to the defendant; (3) thereafter, the defendant took an employment action adverse to the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000). Once the plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to produce “some legitimate, nondiscriminatory reason” for the adverse employment action. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). If the defendant is able to proffer a nondiscriminatory reason for the adverse action, the burden shifts back to the plaintiff to produce credible evidence that the reason offered by the defendant is a mere pretext for unlawful retaliation. Burdine, 450 U.S. at 253; McDonnell Douglas, 411 U.S. at 804.”)
WHAT TO DO IF YOU BELIEVE YOU HAVE BEEN THE VICTIM OF RETALIATION AT WORK
The first thing for you to do in determining if you have a valid retaliation claim is to decide whether you have engaged in protected activity. Engaging in protected activity means that you have complained in some form or another about discriminatory action you believe the employer has taken against you. Therefore, if you have utilized the employer’s complaint procedure or even if you have spoken informally to someone in the Human Resources department regarding possible discrimination, you have engaged in protected activity. If you believe that you have in fact done this and your employer then takes an adverse employment action against you, you may have a retaliation action. Your best course of action would be to contact Mark Carey at 203-255-4150 or firstname.lastname@example.org. You may of course proceed directly to the EEOC or your local fair employment agency and file a retaliation complaint.
WHAT TO DO IF YOU HAVE BEEN ACCUSED OF RETALIATION AT WORK
Retaliation is always a potential cause of action if someone has complained about discrimination in the workplace. Accordingly, if an employee or co-worker of yours ever complains to you either formally or informally regarding discrimination they believe they have suffered in the workplace, you should forward this information to the appropriate person under your company’s anti-discrimination policy or if there is no such person mentioned to an appropriate person in your company’s human resource department. If the employee who has complained to you about discrimination work for you or if you have any control over hiring and/or firing that employee, you should ensure that you take no adverse employment action against that employee until you have confirmed such action with in-house counsel and/or human resources. Otherwise, you could be accused of retaliating against that employee. Although Courts have held there can be no personal liability under Title VII, some courts have held that managers can be individually liable under their state’s fair employment laws for both discrimination and/or retaliation.