The subject of retaliation seems to be taking the world of employment law by storm. Why? We know that employer retaliation against employees protesting employer practices reasonably believed to be illegal is an unlawful employment practice. (Click here for review) So what more do we need to know? Workplace retaliation is kind of like an onion. You peel away the skin and you find another layer, and then another. This week’s layer: What is “protected” activity for purposes of determining impermissible retaliation? Must the employee specifically tell his/her employer or a government body in writing that the activity in question is a Title VII/ADA/ADEA/FLSA or other type of violation? Is it enough for him/her to glare at the employer with disdain if s/he feels the employer made a discriminatory comment? The answer: “No” and “No”. What then is “protected activity”? Join us after the jump examine this layer!
Whether an employee’s activity is protected against retaliation will depend in part on which statute s/he is claiming the employer violated. Discussing each and every statute under which an employee might protest –and claim retaliatory conduct—is beyond the scope of this humble blog. Just to give you an idea of how things work in this area though, we will focus primarily on retaliation under Title VII of the Civil Rights Act of 1964, and the Fair Labor Standards Act (FLSA). Admittedly, this discussion does not include “breaking news” but it is important for any employer who wants a basic understanding of what activity is likely to be protected under anti-retaliation provisions.
Chapter 8 of the EEOC Compliance Manual states that protection provided by Title VII’s anti-retaliation provisions “applies if an individual explicitly or implicitly communicates to his or her employer or other covered entity a belief that its activity constitutes a form of employment discrimination that is covered by any of the statutes enforced by the EEOC.” Note that there is no requirement of a written communication or filing of formal charges with a governmental agency or formal complaints or grievances. The Compliance Manual lists examples of opposition, which include without limitation: a) threatening to file a charge or other formal discrimination complaint, be it with the EEOC, state fair employment practices agency, union, court or any other entity that receives discrimination complaints; b) complaining to anyone (including a manager, EEO official, attorney, newspaper reporter, Congressperson, “or anyone else”) about alleged discrimination against oneself or others; c) non-verbal oppositions, such as picketing or production slow-downs; d) refusal to obey an order because of a reasonable belief that it is discriminatory; e) requesting a reasonable accommodation for a disability (ADA) or a religious accommodation.
The EEOC does however, issue the following warnings about protected opposition:
- The complainant must explicitly or implicitly communicate a belief that the practice is unlawfully discriminatory;
- Even complaints with broad or ambiguous statements claiming “unfair treatment” are protected opposition if the complaint would reasonably have been interpreted as opposition to employment discrimination.
- Notwithstanding the above, the manner of protest must be reasonable. Reasonableness is determined by balancing employees’ rights to oppose discrimination and the public’s interest in enforcement of the EEO laws against an employer’s need for a stable and productive work environment.
Let’s use some cases and examples to get a better idea what the EEOC means.
The Second Circuit Court of Appeals in Hubbard v. Total Communications (08-5085-cv ) found the following email sufficient to put an employer on notice of a female employee’s complaint of gender discrimination and equal pay violations:
IT IS REALLY NICE TO FIND OUT THAT THE ENTIRE SERVICE DEPT GOT THEIR REVIEW/RAISES THAT WERE DUE IN JULY 2003. WHICH WOULD BE 1-12 GUYS/TECHNICIANS” (emphasis added).
Note that the employee did not explicitly state in her email that she felt she was a victim of gender discrimination. She did however refer to “guys” getting raises. The Second Circuit found that sufficient to let management know that she was complaining about discrimination.
How about an oral complaint to the VP of Human Resources about a manager’s racist comments? The Sixth Circuit ruled in Trujillo v. Henniges Automotive Sealing Systems North America, Inc (Case No. 11-1148 August 20, 2012) that such a complaint was protected opposition, stating, “[T]he fact that it was, as the district court characterized it, an “informal conversation”…does not change the nature and purpose of the conversation, which was a ‘discrete, identifiable and purposive’ opposition to racially-oriented language”.
The Fair Labor Standards Act (FLSA) governs minimum wages, maximum hours and overtime pay. Its anti-retaliation provision forbids employers to terminate or in any other way adversely treat any employee who as “filed any complaint or caused to be instituted any proceeding under which or related to [the Act] or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee” Section 215(a)(3). (emphasis added).
Can stating an oral complaint count as “filing a complaint” under the FLSA? Last year, the United States Supreme Court said yes, in Kasten v. Saint-Gobain Performance Plastics Corporation 131 S.Ct. 1325. Specifically, Mr. Kasten told his shift supervisor that “it was illegal for time clocks to be where they were” because it effectively prevented employees from including time for donning and doffing uniforms and other necessary gear and other compensable activities. Kasten also told a human resources employee that the company would lose a court challenge of the location of the time clocks. The employer disciplined and ultimately terminated Mr. Kasten. The lower courts dismissed Mr. Kasten’s claim, not because they doubted he could prove his allegations, but because they thought the FLSA did not protect oral complaints. The Circuit courts had been split on this question, and so the Supreme Court granted Mr. Kasten’s appeal petition (aka a writ of certiorari). The court based its ruling on the “purpose and context” of the FLSA’s anti-retaliation provision, adopting the Department of Labor’s position that a complaint is “filed” when “a reasonable, objective person would have understood the employee to have put the employer on notice that the employee is asserting statutory rights under the [Act].
What have courts done since Kasten? Just last year, the Fourth Circuit Court of Appeals decided a question that the Supreme Court expressly declined to answer: Is an intracompany complaint “protected activity”? Yes, according to . Kathy Minor met with her employer’s Chief Operating Officer to discuss what she believed to be wage and hour violations committed by her supervisor. Bostwick terminated her, a mere 6 days later, citing “too much conflict” with her supervisor, claiming “the relationship just [was not] working”. What is the difference between the question decided here and that decided in Kasten? According to both courts, the US Supreme Court only decided whether “filing” a complaint included making an oral complaint, as opposed to one in writing, whereas this case decided whether intracompany complaints, in and of themselves (written or oral) were protected activity within the meaning of the FLSA’s anti-retaliation provisions. This distinction does seem to be splitting some already thin hairs. In ruling as it did, the Fourth Circuit indicated that it was following the majority of circuit courts of appeals. The court reiterated Kasten’s requirement that any complaint must still be “sufficiently clear and detailed for a reasonable employer to understand it, in light of both the content and context, as an assertion of rights protected by the statute and a call for their protection”.
Bottom Line: Before disciplining an employee consider even his or her oral, informal statements and whether they could reasonably be interpreted as opposition to discrimination (or other unlawful practices). If so, your disciplinary actions could form the basis of a retaliation claim. This does not mean you cannot discipline the employee. Consult either in-house or outside counsel and proceed with caution.
When we started this topic two weeks ago, we defined retaliation by providing examples of adverse employment actions. Those are not necessarily the only types of actions against which anti-retaliation laws apply, however. More on that next week!
Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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