Published in NH Business Review (9/28/2018)
Q. Eric complained internally about harassment due to teasing and jokes by co-workers based on his accent. He later filed a charge of discrimination against his employer BigCo, Inc., alleging that the company also retaliated against him when, a few weeks after he complained to HR about the alleged harassment, his manager sent him an email criticizing him for frequent tardiness. Is it possible that an informal admonition from his manager can set the stage for a lawsuit claiming retaliation?
A. Retaliation has been the most frequently filed discrimination charge under Title VII for about a decade. In 2017, a staggering 48% of all Title VII and other cases filed with the Equal Employment Opportunity Commission included retaliation. These claims have also been on the rise at the New Hampshire Commission for Human Rights. Even if the employer successfully dismisses an underlying claim of discrimination or harassment, the company could find itself liable for retaliating against the employee for actions that followed the employee’s protected activity. In this case, Eric had every right to complain about this activity to his employer. Bringing harassing conduct based on race, sex, national origin or any other protected status to the attention of a superior is certainly a “protected” action. However, even the most subtle conduct on the part of a manager could be considered unlawful retaliation. The challenge is that this kind of subtle retaliation often happens (subconsciously). For this reason, it is crucially important for companies to train their managers to recognize these forms of retaliation and to avoid it.
Most employers and managers know that it is unlawful to fire an employee as a consequence of taking some legally-protected action such as complaining about discrimination or harassment. Retaliation, however, 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.
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.
At the outset, an employee must prove that the employee was engaged in some legally-protected activity. As the EEOC has noted, examples of what may be considered protected activity include the following:
- complaining about discrimination/harassment;
- opposing discrimination/harassment or intervening to protect others;
- being a witness or answering questions in an employer’s internal investigation, an agency charge, or a lawsuit;
- refusing to follow directives that would result in discrimination/harassment;
- seeking accommodation of a disability or for a religious practice;
- discussing salary information to determine potentially discriminatory wages.
To be unlawful, there must also be a causal connection between the protected activity and any adverse employment action against the employee. Companies must understand what may constitute adverse employment action. 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 action materially adverse, which when viewed in context means that the action taken might have dissuaded a reasonable worker from making or supporting a charge of discrimination.
Whether an admonishment for tardiness in Eric’s situation constitutes an adverse employment action can depend upon a number of factors, including most significantly, its practical effects. Determining whether the manager’s criticism here is materially adverse is a case-by-case inquiry that depends upon the particular facts of the situation.
For instance, the First Circuit Court of Appeals has found in one case 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 the criticisms did not carry any tangible consequences. The admonitions were directed at correcting workplace behavior, and the employee’s working conditions were never altered. But, in another case, the First Circuit has 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 a charge of discrimination for fear of being subjected to investigation, reprimand, and serious discipline.
Additional EEOC examples of activity that could be considered retaliatory against an employee engaged in protected activity include:
- increasing scrutiny of, reprimanding, or giving an employee a low performance evaluation;
- transferring an employee to a less desirable position or giving an employee less desirable tasks;
- treating an employee’s family member or someone within the “zone of interest” of an employee adversely (for example, terminating the spouse of an employee who complains of harassment);
- making things more difficult for an employee (for example, changing the employee’s work schedule with adverse consequences).
With the continued trend of these claims, in August 2016 the EEOC issued guidance for employers. While it is not controlling, the guidance can be persuasive to a court. The guidance also informs how the EEOC trains its personnel in processing and investigating discrimination charges filed by employees and in considering what litigation it may bring for enforcement. Essentially, it is used as a reference by EEOC staff in making decisions on claims. The guidance and above examples can be found at www.eeoc.gov/laws/guidance/retaliation-qa.cfm.
Companies should train their managers to recognize and avoid retaliatory conduct. Moreover, under New Hampshire law, a manager who engages in retaliatory conduct could be personally liable under the state’s antidiscrimination statute for retaliation as well as the employer. Employers should also consider consulting an attorney before taking disciplinary action against an employee who has engaged in protected activity.
Jennifer L. Parent is chair of the Litigation Department and a director of McLane Middleton, Professional Association. She is the current Association Delegate to the American Bar Association and a past president of the New Hampshire Bar Association