Employment: Retaliation 101

03.01.10

Federal employment claims brought by employees against their employers, and which are often based on race, sex, and age are often times accompanied by a claim for retaliation. A retaliation claim is in fact a very simple allegation that involves very few components. First, an employee must allege he engaged in a protected activity, such as complaining about racial or age discrimination. Second, the employee must claim he was then punished for doing so. This so called punishment is referred to as "an adverse employment action." While retaliation is a simple claim, as with most employment cases, it is often accompanied by convoluted facts.

In order to succeed on a retaliation claim, a person must be able to establish a "causal connection" between the protected activity, i.e. complaining about racial discrimination, and the punishment that followed. In other words, they must establish that the punishment was a result of their complaint. As with most cases, the often muddy facts and what really happened complicate this fairly simple analysis.

In a January 27 opinion by the Tenth Circuit Court of Appeals (Todd Anderson v. AOL, LLC) it affirmed the trial court's decision denying Anderson's retaliation claim when the only evidence to support the claim was that the punishment, in his case a termination, was close in time to his complaints of gender and race discrimination. While the proximity of the protected activity and the punishment is a factor for the Court to consider in determining whether retaliation occurred, this was not enough to prove Anderson's case.

Case summary: Anderson complained that both his gender and his race played a part in promotional decisions by AOL. Shortly thereafter, Anderson was fired. Because it is an action taken by the employer that is clearly adverse to the employee, termination is of course an adverse employment. Keep in mind, however, that while termination undeniably falls into the category of "adverse employment actions," there are other things that may be considered "adverse employment actions" as well (e.g., failure to promote, job reassignment, etc).

In Anderson's case, although his complaints and termination were very close in proximity, there were numerous documents and evidence supporting AOL's position that Anderson had been a problem employee for quite a long time. AOL clearly established that Anderson was terminated for a legitimate business reason; specifically, his inability to function within the management team and to perform the roles and duties of his job.

The evidence showed that Anderson was hostile, unreliable and, in general, unwilling to work within the business structure set up by AOL. After being counseled concerning his erratic and inappropriate behavior, AOL made a legitimate business decision to terminate him.

Anderson still could have prevailed if he had been able to show that AOL's reason was merely a pretext for retaliation. In other words, it was then up to Anderson to prove AOL was using job performance as a smoke screen and in fact, fired him in retaliation for his complaints. Anderson could not do this. In fact, the only possible piece of evidence that Anderson had was the timing between his complaints and his termination. While proximity is a factor in determining whether retaliation occurred, temporal proximity alone is simply not enough to establish retaliation.

The bottom line is that without any other evidence, temporal proximity between complaints and adverse employment actions will not satisfy the employee's burden of proof on a retaliation claim.

What did we learn... practical tips and suggestions:

  1. Know your adverse employment actions. Without a doubt, termination is an adverse employment action. However, there are many other actions such as demotion in pay, demotion in status, moving plaintiff's office to a broom closet, etc., which can be considered adverse employment actions.
  2. Understand you must be able to demonstrate a legitimate reason for the adverse employment decision. In the best case scenario, that legitimate business decision will be well documented and supported by other employees' testimony. Note, this does not mean simply papering an employee's file with complaints, but means in fact that you the employer must have a legitimate basis for the actions that you take.
  3. Before taking an adverse employment action, check to see if the employee has made any such complaints. If so, look critically at the reasons behind the adverse employment action to be sure they are legitimate - and not motivated by retaliation.

By McLaine DeWitt Herndon, mherndon@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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