The Almost-Final Piece on the EEOC and Workplace Retaliation…

OK, this is it,  the countdown. This is the next-to-last installment of our scintillating mini-series on the EEOC and Workplace Retaliation. You’ll only catch it here. It’s not in theaters or on T.V. It’s not even on YouTube. OK, I went a bit overboard there. Let’s get back to our topic and focus. We now know how the EEOC views the first two elements of a retaliation claim, engaging in protected activity and suffering a material adverse (employment) action. We now move on the final element, causation. What’s the deal with causation?  Want to find out? Well, today’s your lucky day, because you get to do exactly that — after the jump, of course…

(image from forensicnotes.com)

If you follow The EmpLAWyerologist regularly you know I don’t like to keep anyone in suspense for too long, and I won’t do it now. Think of the causation element as the bridge between the first two elements. There must be sufficient causal connection between the  protected activity engaged in by the employee and the materially adverse action s/he suffered.  In other words, there must be evidence of a retaliatory motive. Now here’s an interesting point: the retaliatory motive need not come from the person that took the adverse action. Let’s say you fired an employee based on what a co-worker told you about the employee. The employee previously cooperated in an investigation into misconduct by the co-worker. The co-worker had it in for that employee. You might be vicariously liable for that co-worker’s retaliatory motive and actions.  (For legal nerds out there — like me– this is known as the cat’s-paw theory of liability).

Let’s move on. There are two standards of causation, depending on whether you are a private, federal or state employer and depending on which type of claim is involved. In cases against a private or state or local government employer, the evidence must show  that “but for” a retaliatory motive the employer would not have taken the adverse action. (Another fun factoid for legal nerds: The EEOC cites the somewhat recent US Supreme Court case, University of Texas Southwest Medical Center v. Nassar for this point.)  Does this mean that the retaliation must be the “sole cause” of the action? The EEOC says no. There can be multiple “but for” causes. Retaliation need only be one of those “but for” causes. How would that work? Here is one example from the EEOC: If a man debilitated by multiple diseases is poisoned to death, the poison is a but-for cause of his death even if those diseases played a part in his death, as long as, without the incremental effect of the poison, the person would have lived.

In Title VII and ADEA retaliation cases against federal sector employers, the evidence must show that retaliation was a “motivating factor” with respect to the materially adverse action. Why is the standard different under these cases? The statutory language applicable under these circumstances is different from that which applies in retaliation cases against private, state and local government employers.

So, per the EEOC, what would be sufficient evidence of causation? First, the employee’s evidence must show that it is more likely than not (i.e. more than 50% likely) that retaliation has occurred. The employer can offer a non-retaliatory reason for the action. For example, an employer can claim lack of retaliatory motive because it was unaware of the protected activity, or that it was aware the employee made complaints, but did not know the complaints concerned discrimination. An employer can also state, and provide evidence that it was motivated by a legitimate, unrelated reason, such as poor job performance or misconduct. If, however, the employee can provide evidence that the employer’s stated, non-retaliatory motive was pretextual, then the employee may still prevail. The EEOC provides this example: An employee protests under-representation of women in management jobs. She is denied a promotion and alleges that her protest was the reason. The employer states that the real reason was that the other person chosen was better qualified, because s/he had a master’s degree, whereas this employer did not. Suppose, however that the complaining employee shows that she has much more experience working at that company, which has always been the most important criterion for selecting managers? This explanation may be found to be a pretext for retaliation.

Here are other types of evidence of causation:

• Suspicious timing, e.g. the adverse action occurs shortly after the protected activity. Of course, other evidence showing can show retaliatory motive even if the adverse action happens much later than the protected activity.
• Oral or written statements made to the employee or others recommending or proving the adverse action. Such statements may show retaliatory animus or reveal inconsistencies, pre-determined decisions or other similar indications or motivations.
• Comparative evidence, i.e. evidence that the employer treated other similarly situated employees who did not engage in protected activity more favorably than the one(s) that did.
• Inconsistent or shifting explanations, as long as the inconsistencies are not innocuous or cannot “be credibly explained by the employer.”
• Other evidence that the employer’s explanation  was pretextual.

We’ll stop here for now. We’ re not quite done though. Since you’ve made it this far, don’t you want to know what you can do to steer clear of retaliation claims — and EEOC scrutiny? I’m guessing you do, so come back next week, when we’ll wrap up and discuss the EEOC’s recommended Best Practices. See you then!

Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

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