EEOC Issues New Guidance On Retaliation Claims, Part 5: Determining Causation

On August 25, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”).  This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance.  Though not binding, Courts have treated EEOC’s views as being persuasive authority, suggesting these rules will significantly impact how retaliation claims unfold. This is the fifth post in our series, and it examines how courts determine causation in retaliation claims.

A materially adverse action does not violate the EEO laws unless there is a causal connection between the action and a protected activity.  In determining whether such a causal link existed, the courts use two different standards depending on the type of case.  In private section and state/local government retaliation cases, the courts use the “but for” standard, i.e. "but for" a retaliatory motive, the employer would not have taken the adverse action.  This does not mean that retaliatory motive was the sole motive, only that without it, the action would not have been taken. In contrast, federal Title VII and ADEA retaliation cases use a “motivating factor” test, which reflects that federal agencies are not prohibited from specific discriminatory acts but required to make employment decisions "free from any discrimination.”

Once a retaliation claim has been brought, the employee bears the burden of presenting evidence that it is more likely than not that retaliation has occurred. This can be demonstrated by singular pieces of evidence, or based upon a “mosaic” of different actions.  Such evidence can include written and oral statements by or from the employer/employee, suspicious timing of with respect to the protected act and adverse action being taken (short time more likely to show causality), comparative evidence (disparate treatment, selective enforcement, etc.), or inconsistent or changing explanations for certain acts.  This evidence will often be rebutted by the employer, who will proffer a non-discriminatory or non-retaliatory explanation.  Based on the other evidence provided, the Court will either accept the given reasons, or find that such reasons are a pretext meant to obscure illegal acts.

Our next post will look at ways employers can overcome retaliation claims.  The full Guidance can be found here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm


EEOC Issues New Guidance On Retaliation Claims, Part 4: Materially Adverse Actions

On August 25, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”).  This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance.  Though not binding, Courts have treated EEOC’s views as being persuasive authority, suggesting these rules will significantly impact how retaliation claims unfold. This is the fourth post in our series examining the new Guidance, and it looks at what it means for an employer to take materially adverse action against an employee.

Broadly speaking, anti-retaliation provisions prohibit materially adverse actions against individuals who undertake protected activities, i.e. participation and opposition as discussed in the previous two posts.  This covers any employer action that "might well deter a reasonable employee from complaining about discrimination," and need not be an insular act but part of a larger series of actions when taken as a whole. Although "normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence," the standard can be satisfied even if the individual was not in fact deterred.

The Guidance provides numerous examples of materially adverse actions, divided into two broad categories: work related and non-work related.  Work related adverse actions include straightforward examples such as denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge, as well as less direct actions such as work-related threats, warnings, reprimands, transfers, negative or lowered evaluations, and transfers to less prestigious or desirable work or work locations.  Courts have held this includes formal reprimands, which “can reduce an employee's likelihood of receiving future bonuses, raises, and promotions, and it may lead the employee to believe (correctly or not) that his job is in jeopardy.”  In contrast, a non-worked related action can have “no tangible effect on employment… as long as it might well dissuade a reasonable person from engaging in protected activity.”  Though the Guidance doesn’t provide explicit examples of non-work adverse actions, the “additional examples” section includes acts such as “disparaging the person to others or in the media… making false reports to government authorities… [or] taking (or threatening to take) a materially adverse action against a close family member.” As with the other analyses discussed thus far, this is largely a fact-specific determination.

The full Guidance can be found here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm


EEOC Issues New Guidance On Retaliation Claims, Part 3: Protected Activities- Opposition

On August 25, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”).  This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance.  Though not binding, Courts have treated EEOC’s views as being persuasive authority, suggesting these rules will significantly impact how retaliation claims unfold. This is the third post in our series examining the new Guidance, and looks at the second type of protected activity, opposition.  

Opposition is a particularly important class of activities, given its an expansive definition and the great deference courts give to EEOC’s interpretation of opposing conduct.  Opposition “applies if an individual explicitly or implicitly communicates his or her belief that the matter complained of is, or could become, harassment or other discrimination.”  This can be achieved in a wide variety of ways, including but not limited to: informing an employer of what the employee believes to be discriminatory action, refusing employer instructions to engage in discriminatory acts, filing a discrimination claim, answering questions regarding another employee’s discrimination claim, requesting a reasonable religious accommodation, etc.  Ultimately, whether an action constitutes opposition will depend on whether the “circumstances show that the individual is conveying opposition or resistance to a perceived potential EEO violation,” an approach that relies on neither formal communications nor the use of key words (ex: harassment, discrimination) or phrases.  Finally, opposing conduct is a protected activity regardless of the party asserting it, including not only employees but managers, human resources personnel, or others.

Despite the broad definition of opposing conduct, there are still limitations on what actions are deemed acceptable in light of the employer’s need for “a stable and productive work environment.”  Generally, the manner of opposing conduct must be reasonable.  Forms of opposition deemed reasonable include candidly disclosing a forthcoming complaint to an employer, making complaints to such as union representatives or a lawyer, and complaining of conduct that, while not yet rising to the level of “severe or pervasive,” could rise to that level in the future.  In contrast, it is considered unreasonable for an employee to make “an overwhelming number of patently specious complaints,” harass or coerce a subordinate employee to give a witness statement in support of an EEOC charge, or attempt to change the contents of such a witness statement. Similarly, unlawful acts such as committing or threatening violence or destruction of property would likely be considered “unreasonable.”  In most cases, however, the determination of reasonableness will be fact-specific.

Critically, protected opposition “does not serve as license for the employee to neglect job duties. If an employee's protests render the employee ineffective in the job, the retaliation provisions do not immunize the employee from appropriate discipline or discharge.”  However, opposition can still be protected even if the conduct opposed is ultimately deemed lawful, so long as the employee had a reasonable good-faith belief that the conduct violated EEO laws, or could do so if repeated.  This reflects a policy, supported by the courts, that "the victim is commanded to 'report the misconduct, not investigate, gather evidence, and then approach company officials.'"

The full Guidance can be found here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm


EEOC Issues New Guidance On Retaliation Claims, Part 2: Protected Activities- Participation

On August 25, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”).  This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance.  Though not binding, Courts have treated EEOC’s views as being persuasive authority, suggesting these rules will significantly impact how retaliation claims unfold. This is the second post in our series examining the new Guidance, and looks at the first type of protected activity, participation.

The anti-retaliation provisions relating to participation state that it is “unlawful to discriminate because an individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under the relevant non-discrimination statutes, including Title VII, ADEA, ADA, etc.  This extends to both administrative hearings and lawsuits, even in cases where the underlying allegation lacks merit or was not timely filed.  One of the notable changes in the Guidance is the further expansion of this protection to include internal EEO complaints and investigations, including the act of contacting a federal agency’s internal EEO Counselor under 29 C.F.R. § 1614.105.

The Guidance also rejects limiting the protections on participation based upon intent, noting that the Supreme Court has held “broad participation protection is necessary to achieve the primary statutory purpose of anti-retaliation provisions, which is ‘maintaining unfettered access to statutory remedial mechanisms.’” Based upon this reasoning, the EEOC rejects imposing a good faith requirement, and takes the position that “an employer can be liable for retaliation if it takes it upon itself to impose consequences for actions taken in the course of participation.”  This includes retaliation where an employee gives false testimony or brings a claim in bad faith.  However, while prohibiting retaliation by the employer for such conduct, the Guidance concedes that “[f]alse or bad faith statements by either the employee or the employer should be taken into appropriate account by the factfinder, investigator, or adjudicator of the EEO allegation when weighing credibility, ruling on procedural matters, deciding on the scope of the factfinding process, and deciding if the claim has merit.”

In sum, participation protects an employee who brings or takes part in any type of anti-discrimination investigation or proceeding.  Once such activities commence, the employer cannot take retaliatory action against the employee without exposing itself to further liability, and must act through the court or body overseeing the proceeding to punish any misconduct related to the employee’s participation.

The full Guidance can be found here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm


EEOC Issues New Guidance On Retaliation Claims: Introduction

Last week, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”).  This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance.  Though not binding, Courts have treated EEOC’s views as being persuasive authority, suggesting these rules will significantly impact how retaliation claims unfold. In this series of posts, we will examine the new set of guidelines and what they mean for employers and employees that may be involved in such suits.  This first post will provide an overview of retaliation claims and the basic standards and terms.

The Guidance states that “[r]etaliation occurs when an employer takes a materially adverse action because an individual has engaged, or may engage, in activity in furtherance of the EEO laws the Commission enforces.”  This includes a variety of anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, Title V of the Americans with Disabilities Act, Section 501 of the Rehabilitation Act, the Equal Pay Act, and Title II of the Genetic Information Nondiscrimination Act.  Retaliation is now the most frequently alleged basis of discrimination, and accounts for between 42% and 53% of all EEOC violation findings, depending on the specific year.

Broadly speaking, there are three elements to a to making a retaliation claim: (1) a protected activity, in the form of either "participation" in an EEO process or "opposition" to discrimination; (2) a materially adverse action taken by the employer; and (3) a sufficient causal connection between the protected activity and the materially adverse action.  Whether these elements are present is a highly fact-specific determination that will largely depend on the type of activity being retaliated against, and the nature of the alleged retaliation. Notably, these protections do not prohibit employers from disciplining or terminating employees for legitimate, non-discriminatory, non-retaliatory reasons. 

If an employer intends to take a materially adverse action against an employee, it may be prudent to develop an independent review process to determine whether such action is appropriate. This will reduce the chance of an employer being found liable for retaliating against an employee.  This and other forms of liability insulation will be discussed more towards the end of this series.   

The full Guidance can be found here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm


Department of Justice Releases Report on RLUIPA Enforcement

On July 22, the U.S. Department of Justice (“DOJ”), Civil Rights Division released a report focusing on its enforcement of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), which prohibits discrimination relating to zoning, land use, etc. based on religious affiliation (a more full description of RLUIPA’s anti-discrimination provisions can be found in the report linked above at pages 3-4). The report updates the Civil Rights Division’s 10th Anniversary RLUIPA report from 2010 with details of subsequent enforcement activity between September 2010 and the present. Some of the highlights of the report include:

•             55% of RLUIPA land-use investigations by the DOJ involved minority faiths such as Muslims, Jews, Hindus and Buddhists, which together account for less than 5% of the US population. Of the remaining 45% of investigations, which involved Christian congregations, more than half involved predominantly African American, Latino, and Asian-American churches.

•             Since September 2010, the DOJ has opened 45 RLUIPA investigations, compared to a total of 51 from 2000 to 2010.  This represents a 47% increase.  Moreover, many of these cases are resolved with local governments either during or after the investigation; only eight of the 45 investigations required lawsuits to be filed.

•             The number of RLUIPA land-use investigations involving Muslims rose from 14% from 2000 to 2010 to 38% in September 2010 to the present.  However, while 84% of non-Muslim RLUIPA land-use matters resolve with favorable outcomes for the religious institution at the investigation stage, only 20% of Muslim RLUIPA land-use matters resolve with favorable outcomes at the investigation stage.  Also, seven of the eight lawsuits cited above involved mosques or Islamic schools.

•             49% of the investigations handled by Justice Department since September 2010 involved disparate treatment between religious assemblies and nonreligious assemblies, such as clubs, community centers, and assembly halls.

The RLUIPA report update complements the findings in the RLUIPA section of the Combating Religious Discrimination Today final report.  That report, based on the observations and recommendations of diverse religious and civil rights leaders, stated that Muslim land-use cases were a growing problem, as municipal officials were not treating religious assemblies on equal terms with nonreligious assemblies.  The report concludes by recommending that the government do more to educate religious communities and local officials about RLUIPA, while noting DOJ officials have already held 55 events since September 2010 on the subject.


Second Circuit Affirms Dismissal Of Unlawful Retaliation Suit Brought By Former NY Department of Labor Employee

Plaintiff-appellant Winifred Cooper (“Cooper”) brought suit in federal court under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, alleging her former employer, the NY State Department of Labor (“DOL”), unlawfully retaliated against her for opposing an employment practice proscribed by Title VII and the NYSHRL.  The case arose from the decision to remove Cooper from her position as Director of Equal Opportunity Development, who was responsible for “ensuring that the DOL complied with federal Equal Opportunity rules and regulations.”  In that role, Cooper was a vocal opponent of a proposal by the Governor's Office of Employee Relations to “alter the means by which internal Equal Employment Opportunity complaints were to be handled by state agencies,” as she believed the proposed changes “materially conflicted with federal regulations” and would “subject the… process to political pressure.”  While the proposal was later changed to reflect her concerns, Cooper was terminated several months later, alleging her opposition was the basis for her termination.  The District Court dismissed the claim, finding Cooper could not have reasonably believed the conduct she opposed violated either statute.  Cooper appealed.

On appeal, the Second Circuit affirmed the lower court’s ruling.  Under Title VII’s retaliation provisions, a plaintiff need not show that the behavior he opposed in fact violated Title VII, only that he “possessed a good faith, reasonable belief,” that the employer's conduct qualified as an “unlawful employment practice” under the statute.  However, the Court noted Title VII is “precise, complex and exhaustive,” and defines what prohibited practices with “uncharacteristic exactitude.”  Under those specific terms, employers have no obligation to maintain any particular procedures for handling internal complaints under Title VII.  As such, the proposed procedures were not conduct Cooper could have reasonably believed violated the statute. 

In conclusion, while “mindful that when an employer punishes an employee for conduct intended to secure equality in the workplace, it does little to further—and may hinder—Title VII's primary objective of eradicating invidious discrimination in employment,” the Court found Cooper’s “argument stretches our precedents and the text of Title VII well past their breaking points.”  The Second Circuit thus affirmed the lower court’s dismissal of Cooper’s claim.

The case was Cooper v. New York State Dep't of Labor, 2016 WL 1639741 (2d Cir. 2016)


Second Circuit Holds “Hispanic” Is A “Race” Under Title VII and § 1981

Plaintiff Christopher Barrella (“Barrella”), a white police officer of Italian-American heritage, brought an action in federal district court under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and the New York State Human Rights Law against the Village of Freeport (“Village”) and its former mayor, Andrew Hardwick (“Hardwick”) (collectively “Defendants”).  In the suit, Barrella alleges that he was not hired as chief of police in favor of a less qualified Hispanic candidate, Miguel Bermudez (“Bermudez”), on the basis of race and national origin, even though Bermudez, born in Cuba, identifies as “white.” 

After extensive discovery, Defendants moved for summary judgment, which was denied except with respect to Barrella's claim of national-origin discrimination. The case then went to trial, and after five days of deliberation, the jury rendered a verdict against both defendants, finding that Hardwick had intentionally discriminated against Barrella on the basis of race. The jury awarded Barrella $150,000 for lost back pay, $1,000,000 for lost future pay, and (against Hardwick only) $200,000 in punitive damages. The District Court denied defendants' motions for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure and for a new trial or remittitur under Rule 59. The Court also awarded attorneys' fees and costs to Barrella. Defendants appealed.

On appeal, a central question addressed by the Second Circuit was whether “Hispanic” was a race for purposes of Title VII and § 1981.  Defendants claimed that since both candidates identified as white, there could not be discrimination as a matter of law, however the Second Circuit rejected this argument.  While acknowledging the muddled and conflicting usage of “race” and “ethnicity,” including the nuances between Hispanic and Latino, and the common usages versus bureaucratic definition, the Court found that the legal usage of the term in civil rights cases was quite consistent. Accordingly, the Court “need not answer the vexed question posed by the Village's brief: ‘What is Race?’”

Regarding § 1981, the Court noted that while the statute never uses the word “race,” the Supreme Court has found that the statute prohibits racial discrimination, which includes discrimination based on “ancestry or ethnic characteristics.” As “Hispanic” clearly constitutes an ethnic group, both in common usage and under the Supreme Court’s precedent in Saint Francis College v. Al–Khazraji, the Court held that Hispanics constituted a distinct race for purposes of § 1981.

The Court next turned to Title VII, noting that while the prohibition on discrimination against Hispanics was clearly encompassed in the statute’s “race, color, religion, sex, or national origin” language, there was no precedent directly addressing which of those bases “Hispanic” fell under.  Instead, previous decisions simply held that it was a protected class. 

Below, the district court first ruled as a matter of law that Hispanic was a national origin, but was a type of race, before reversing and finding that whether Hispanic was a race was a question of fact for the jury.  The Second Circuit reversed that decision, noting that “race” is a statutory term and therefore a question of law for the court.  However, “the District Court's error was harmless, because the jury reached the same conclusion as we do today: that discrimination based on ethnicity, including Hispanicity or lack thereof, constitutes racial discrimination under Title VII.”  Thus, even though Hispanic could also be cognizable under national-origin discrimination based upon the facts, the Court held that for purposes of Title VII, race encompasses ethnicity, just as it does under § 1981.

The case was Vill. of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016).


Class Action Discrimination Suit Against Airbnb A Potential Blow To The Sharing Economy

Companies like Uber and Airbnb, the top dogs in the new “sharing economy,” have faced their share of legal troubles. In many ways, this reflects how their business models break the traditional mold, creating challenges for laws that were drafted before such companies even existed and to which legal precedent is rarely a perfect fit. Today’s post looks at how a more traditional legal claim, racial discrimination, gets tied up in the sharing economy’s complexities.

Airbnb (shortened from “air bed and breakfast”) is a website that allows users to list, search and rent lodging from private individuals.  For example, a homeowner may rent out a guest bedroom, or a house while away on vacation. Users also must create profiles with their real names and an appropriate profile picture, both as a way of building “trust” and for security purpose, thus allowing renters to recognize the expected lodger. The problem is it has also been linked to racial discrimination.

On May 17, 2016, Gregory Selden, age 25, sued Airbnb alleging it had turned a blind eye to racial discrimination by its users. Selden, who is African-American, alleges he was told a rental he had inquired about was no longer available, only to see the posting for the room replaced a short time later, again listing it as available. Selden then created two fake profiles for white renters, complete with pictures, and inquired about the room. Both fake profiles were informed the room was available. After Airbnb failed to respond to his complaints, he brought suit in the United States District Court for the District of Columbia. He also started the hashtag #airbnbwhileblack, while quickly went viral.

While this behavior by a hotel or landlord would clearly violate well-established anti-discrimination laws, the nature of the sharing economy raises unique questions. The most basic of these is whether Airbnb should be considered a “public accommodation.”  Under Title II of the Civil Rights Act of 1964, a public accommodation such as a hotel, restaurant, movie theater, etc. may not discriminate on the basis of race. However, sharing economy companies like Airbnb have historically argued they are merely third party accommodators that match individuals who are offering and seeking a similar service, in this case lodging. In addition, Airbnb claims it regularly removes users from its service who have been reported as discriminating on the basis of race, sexual orientation, and other factors.

The case is Gregory Selden v. Airbnb, 16-cv-00933, U.S. District Court, District of Columbia.


SCOTUS Upholds Attorney’s Fees In Title VII Cases Even Where Prevailing Party Did Not Prevail On The Merits

In a unanimous decision dated May 19, 2016, the Supreme Court held in CRST Van Expedited, Inc. v. EEOC that a favorable ruling on the merits is not a necessary predicate to finding that a defendant is a prevailing party for the purposes of attorney’s fees under Title VII’s fee shifting statute.

Petitioner CRST, a trucking company, has two drivers share driving duties for each truck, and requires new drivers complete a training program. The case arose in 2005, when Monika Starke filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging that she was sexually harassed by two male employees during her training. Following the procedures dictated by Title VII of the Civil Rights Act of 1964 (specifically 42 USC §2000e-5(b)), the EEOC informed CRST and investigated. In 2007, after attempts at conciliation failed, the EEOC brought suit in its own name against CRST under Title VII. During discovery, EEOC identified a class of 250, however the District Court dismissed all of the claims, including 67 claims barred due to insufficient investigation by the EEOC or a failure to attempt conciliation. The District Court then dismissed the suit, ruled CRST the prevailing party, and awarded the company over $4 million in attorney’s fees. The Eighth Circuit reversed the dismissal of two claims and vacated the award of attorney’s fees without prejudice, and on remand the District Court again awarded over $4 million.  The case returned to the Eighth Circuit, which reversed and remanded on the grounds that a Title VII defendant cannot be a prevailing party unless it obtains a “ruling on the merits.”

Writing for the unanimous court, Justice Kennedy found that a favorable ruling on the merits is not a necessary predicate to find that a defendant is a prevailing party.  He wrote that common sense dictates that a defendant may “prevail” without a ruling on the merits, as the defendant’s goal is to prevent an alteration of the legal relationship between the plaintiff and defendant. That goal was achieved here, and there is no reason to believe Congress, in allowing prevailing defendants to recover whenever the plaintiff’s “claim was frivolous, unreasonable, or groundless” had intended to condition the award of attorney’s fees on a ruling on the merits.  Accordingly, the Court vacated and remanded the Eighth Circuit’s decision.

Notably, the Court declined to rule on whether the defendant must obtain a preclusive judgment in order to prevail, as the EEOC did not raise the issue until the merits stage. Accordingly, the issue was found to be inadequately briefed, and the Supreme Court left it for the Eighth Circuit to address in the first instance on remand.

The full text of the decision can be found here: http://www.supremecourt.gov/opinions/15pdf/14-1375_09m1.pdf



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