Do Your Managers Recognize and Avoid Instances of Retaliation?

Adam Hamel Headshot
Adam M. Hamel
Director, Litigation Department and Vice Chair, Employment Practice Group
Published: New Hampshire Business Review
November 2, 2012

Q. Jane, an employee of BigCo, Inc., has just filed a claim of race discrimination against her employer.  In her charge, she also alleges that the company retaliated against her when, a few weeks after she complained to HR about the alleged discrimination, her manager sent her an email criticizing her for frequent absences from work. Is it possible that an informal admonition like this can give rise to liability for retaliation?

A. Most employers and managers know that it is unlawful to fire an employee as a consequence of taking some legally-protected action such as asserting a claim of discrimination, exercising rights under the Family and Medical Leave Act, or blowing the whistle about some act or practice that the employee believes is illegal. However, retaliation is not limited to just “ultimate employment decisions” like termination, demotion and reduction in pay. Depending upon the practical consequences, even seemingly minor admonitions for performance issues may constitute an adverse employment action giving rise to a retaliation claim.

Employee claims of retaliation have been on the rise in recent years. In 2011, more than 37% of the claims filed with the Equal Employment Opportunity Commission (“EEOC”) were retaliation claims. It was the second year in a row that retaliation claims constituted the largest percentage of claims, edging out claims of race discrimination, which had long been the largest category. Retaliation claims filed with the New Hampshire Human Rights Commission have also been on the rise. It is for this reason that it is crucially important for companies to train their managers to recognize retaliation and to avoid it.

Under both federal law (Title VII) and New Hampshire law (RSA ch. 354-A), employees are protected from retaliation for engaging in certain legally-protected activity. Generally, a retaliation claim requires three elements: (1) the employee engaged in a statutorily-protected activity; (2) the employee suffered an adverse employment action; and (3) the protected activity and the adverse employment action were causally connected.

Because all three elements must be proved, it is important for employers to understand what may constitute adverse employment action. In some cases, it is evident that an employee has suffered an adverse employment action, such as when the employee has been terminated or demoted. In other instances, it is less clear. The U.S. Supreme Court has held that Title VII does not protect employees from all retaliation, but rather, retaliation that produces an injury or harm. In determining whether an employment action is “adverse” such that it gives rise to a retaliation claim, courts look at the action objectively and consider whether “a reasonable employee would have found the challenged action materially adverse, which in context means it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

Whether an admonishment for performance issues constitutes an adverse employment action can depend upon a number of factors, most significantly, its practical effects. Courts have found that a manager’s criticism of an employee is not actionable if it carries with it no consequences.  Generally, “petty slights, minor annoyances, and simple lack of good manners” do not rise to the level of adverse employment action. Determining whether an employer’s action is materially adverse is a case-by-case inquiry that depends upon the particular facts of the situation.

In one recent case, the First Circuit Court of Appeals found that written reprimands for unexcused absences and unauthorized use of a cell phone while at work did not rise to the level of adverse employment action—even though the warnings may have been undeserved—because they did not carry any tangible consequences. The admonitions were directed at correcting workplace behavior, and the employee’s working conditions were never altered. Similarly, the U.S. District Court for New Hampshire found that a manager’s threat, to an employee who had complained that she was being treated differently than male employees, that he would subject her to “nitpicking” did not give rise to a retaliation claim because heightened scrutiny by itself is not an adverse employment action. But, in another recent case, the First Circuit found that an employer’s multiple reprimands of an employee, who had asserted a hostile workplace claim, did constitute an adverse employment action because, when taken together, the reprimands could have dissuaded a reasonable employee from making or supporting a charge of discrimination for fear of being subjected to investigation, reprimand and serious discipline.

Of course, even if an employer’s conduct does constitute an adverse employment action, the employee must also prove that he or she was engaged in some legally-protected activity, and that there was a causal connection between the protected activity and the adverse employment action in order to prevail on a retaliation claim.

The determination of whether a particular action constitutes an adverse employment action is case-specific. Employers should train their managers to recognize and avoid retaliation.  Given the potential for liability, employers may consider consulting an attorney before taking disciplinary action against an employee who has engaged in protected activity.