1. What is retaliation?
2. What is protected conduct?
3. Did your employer take adverse action?
4. Did your employer know about your protected conduct?
5. What is the evidence that your protected conduct led to your termination?
6. How can I counter my employer’s denials?
7. Who enforces the law?
8. What are the remedies available to me?
9. How can I file a complaint / How long do I have to file?
Most of the federal laws that protect employees’ rights contain provisions that make it unlawful for an employer to retaliate against someone who engages in conduct which the law protects. Proving retaliation can be difficult. The following are key questions to be asked in considering a claim for retaliation.
“Protected conduct” includes all aspects of trying to oppose or remedy discrimination, such as: filing a charge of discrimination. Examples are: threatening to file a charge; complaining about, opposing or protesting perceived discrimination against that employee or another employee; assisting someone else in opposing discrimination; giving evidence or testimony to an investigator; refusing to engage in conduct that the person believes to be unlawful; and refusing to assist an employer (by testimony or otherwise) in discriminating. Under the Family and Medical Leave Act (FMLA), requesting or taking medical leave or protesting your employer’s refusal to allow you to take leave is considered protected conduct. Even making inquiries about a certain policy or practice of the company, or about your participation in any retirement or other plan covered by the Employee Retirement Income and Security Act (ERISA), is protected conduct.
Your employer must have retaliated against you in some way that affects the “terms and conditions” of your employment before the conduct is unlawful. Usually, unlawful retaliation takes the form of demotion, harassment or termination. You must show that your job was adversely affected by your employer before you can proceed with a retaliation claim.
This standard was relaxed somewhat in June, 2006. The plaintiff in Burlington Northern v. White was the only woman forklift operator in the Burlington Northern & Santa Fe Railway Co.’s maintenance department in the Memphis, Tenn., train yard in 1997.
After she complained to Burlington Northern officials of gender discrimination, she was reassigned to a less desirable laborer position—albeit one with the same pay and benefits. She filed an Equal Employment Opportunity Commission complaint about the demotion; later, she was accused of insubordination toward a supervisor and suspended without pay. More than a month later, the company found she hadn’t been insubordinate, reinstated her and awarded her back pay.
White sued Burlington Northern for retaliation based in part on the transfer and the suspension. After a one-week jury trial, she won $43,500 in damages plus medical expenses and attorney fees. But despite this courtroom victory, her journey through the nation’s judicial system was only just beginning.
It ended in a resounding defeat for the railway and an important victory not only for White but also for employment discrimination plaintiffs nationwide.
Applying a much broader test for retaliation than had previously existed in many federal judicial circuits, the U.S. Supreme Court ruled that both Burlington Northern’s suspension of White and the company’s transfer of White to a less desirable job independently established an actionable retaliation claim.
Until now, to prove a retaliation complaint, plaintiffs in certain circuits had to show not only job-related adverse conduct by the employer but an “ultimate employment decision” such as a firing.
In Burlington Northern, however, Justice Stephen G. Breyer wrote that neither element is necessarily required to create a claim for retaliation under Title VII of the Civil Rights Act of 1964. Justice Samuel A. Alito Jr. concurred in the otherwise unanimous opinion.
Rather, any action that materially injures or harms an employee who has complained of discrimination and would dissuade a reasonable worker from making or supporting a charge of discrimination can constitute actionable retaliation, Breyer wrote.
Title VII prohibits employers from discriminating against workers on the basis of certain characteristics, such as gender and race. The statute provides for retaliation claims if a worker complains of illegal discrimination and is then punished for making the complaint.
The issue of what exactly constitutes punishment sufficient to establish a retaliation claim had divided the federal appellate courts for years. Some held that an employee who complains of discrimination essentially has to be fired or demoted before he or she can successfully sue for retaliation. Other courts of appeals, however, said any adverse employment action reasonably likely to deter an employee from asserting rights under Title VII is sufficient to support a cause of action.
In White’s case, even the judges of the Cincinnati-based 6th U.S. Circuit Court of Appeals disagreed. A divided three-judge panel initially reversed the judgment against Burlington Northern on the retaliation claims. White v. Burlington Northern, 310 F.3d 443 (2002). And then, when the en banc court subsequently upheld the judgment for the plaintiff, there was disagreement about the correct standard to apply. Burlington Northern v. White, 364 F.3d 789 (2004).
Breyer’s sweeping opinion clears up this confusion, coming down clearly on the side of wronged workers.
The court’s conclusion was required under the plain language of Title VII because its anti-retaliation provision is broader than its anti-discrimination provision, Breyer wrote. That is because Congress apparently intended the difference and recognized that “an employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace,” he explained. Thus, “the scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm. We therefore reject the standards applied in the courts of appeals that have treated the anti-retaliation provision as forbidding the same conduct prohibited by the anti-discrimination provision and that have limited actionable retaliation to so-called ‘ultimate employment decisions.’ ”
The broad, anti-retaliation language of Title VII, however, is limited by the requirement that conduct must be materially adverse to rise to the level of actionable retaliation, Breyer continued. “It is important to separate significant from trivial harms,” he wrote, contrasting “employer interference with ‘unfettered access’ to Title VII’s remedial mechanisms,” which is actionable, with “the ordinary tribulations of the workplace,” which generally are not. His list of ordinary tribulations included personality conflicts and snubbing, and “sporadic” abusive language, gender-related jokes and teasing. What exactly constitutes retaliatory conduct will depend on the circumstances of the particular case. “By focusing on the materiality of the challenged action and the perspective of a reasonable person in the plaintiff’s position,” Breyer explained, “we believe this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination.”
Applying this standard to White’s case, the Supreme Court found that “reassignment of job duties is not automatically actionable.” At the same time, though, an employer cannot avoid legal scrutiny by claiming, as Burlington Northern did, that there was no retaliation because the plaintiff’s duties, before and after reassignment, fell within the same job description. Here, because evidence showed the job to which White was reassigned was considered harder, dirtier and less prestigious, a jury could reasonably find that the reassignment was retaliatory, the opinion stated.
The jury also had a reasonable basis for finding that the railway company’s 37-day suspension of White—initially without pay, although she was later reimbursed—after she complained was retaliatory, the court said, writing: “Many reasonable employees would find a month without a paycheck to be a serious hardship.”
You must show that your employer knew that you engaged in protected conduct. This requires that the person who makes the actual decision about your job, either verbally or in writing, knew about your conduct. Telling the decision maker about your conduct is the simplest way to assure that the employer knows about you protected activity. However, there are other ways that the decision maker could have learned about your conduct. Other company employees or supervisors or the Equal Employment Opportunity Commission may tell someone at your company about your protected conduct. If you cannot prove that your employer knew about your protected conduct, you will not be able to prove a case of retaliation.
The most difficult part of a retaliation claim is showing a causal connection between your protected conduct and the adverse action taken against you. Timing can be evidence of a causal connection. If your employer fires you shortly after you file a charge of discrimination, one can infer that your protected conduct was the real reason for your termination. Other ways to establish causal connection include showing that other employees who engaged in protected activity were fired, showing that other employees guilty of the same alleged misconduct were not fired, or showing any other circumstance which justifies an inference that your termination was motivated by your protected activity.
You can disprove your employer’s stated reasons for your termination using the same kind of evidence used to show “pretext” in a discrimination case. For example, you can show that the employer’s excuse is factually untrue, that it was insufficient to have actually caused your discharge, that it is simply unworthy of credence, or so riddled with errors that your employer could not realistically have relied on its stated reason. Remember, it is always going to be up to you, the employee, to prove unlawful motivation. While difficult, it is not impossible. Circumstantial evidence can be powerful in proving your case.
The Equal Employment Opportunity Commission (EEOC) is the federal governmental agency responsible for investigating charges of retaliation on the basis of protected conduct in workplaces of 20 or more employees. Most states have their own agencies that enforce state laws against retaliation (see question 9 below).
Victims of retaliation can recover remedies to include:
- back pay,
- front pay,
- punitive damages (damages to punish the employer),
- other actions that will make an individual “whole” (in the condition she or he would have been but for the discrimination or retaliation)
Remedies also may include payment of:
- attorneys’ fees,
- expert witness fees, and
- court costs
An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.
The employer also may be required to take corrective or preventive actions to cure the source of the identified discrimination and minimize the chance of its recurrence, as well as discontinue the specific discriminatory practices involved in the case. Your state law may allow for greater or different remedies than federal law.
Filing a discrimination complaint in Pennsylvania.
A. What kinds of discrimination are against state law in Pennsylvania?
The Pennsylvania Human Relations Act makes it illegal for an employer to discriminate on the basis of race, color, religion, ancestry, age (40 and above), sex, national origin, non-job related disability, known association with a disabled individual, possession of a diploma based on passing a general education development (GED) test, or willingness or refusal to participate in abortion or sterilization.
B. How do I file a discrimination claim in Pennsylvania?
A discrimination claim can be filed either with the state administrative agency, the Pennsylvania Human Relations Commission (PHRC) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.
The Pennsylvania anti-discrimination statute covers some smaller employers not covered by federal law. Therefore, if your workplace has between 4 and 14 employees, you should file with the PHRC, as the EEOC enforces federal law which covers only employers with 15 or more employees. If your workplace has 15 or more employees, you may file with either agency, unless your claim is based on a discrimination category not covered under federal law, such as possession of a GED diploma or participation/non-participation in abortion or sterilization, which would require you to file with the PHRC.
To file a claim with the PHRC, contact the office serving the county where the discrimination occurred (not necessarily the closest to where you live). More information about filing a claim with the PHRC can be found athttp://www.phrc.state.pa.us.
Harrisburg Regional Office
Riverfront Office Center,
1101-1125 S. Front Street, 5th Floor
Harrisburg, PA 17104-2515
Phone: (717) 787-9784
TTY: (717) 787-7279
Counties Served: Adams, Bedford, Berks, Blair, Bradford, Cambria, Carbon, Centre, Clinton, Columbia, Cumberland, Dauphin, Franklin, Fulton, Huntingdon, Juniata, Lackawanna, Lancaster, Lebanon, Lehigh, Luzerne, Lycoming, Mifflin, Monroe, Montour, Northampton, Northumberland, Perry, Pike, Schuylkill, Snyder, Somerset, Sullivan, Susquehanna, Tioga, Union, Wayne, Wyoming and York.
Philadelphia Regional Office
711 State Office Building,
1400 Spring Garden Street,
Philadelphia, PA 19130
Phone: (215) 560-2496
TTY: (215) 560-3599
Counties Served: Bucks, Chester, Delaware, Montgomery and Philadelphia.
Pittsburgh Regional Office
11th Floor State Office Building
300 Liberty Avenue
Pittsburgh, PA 15222
Phone: (412) 565-5395
TTY: (412) 565-5711
Counties Served: Allegheny, Armstrong, Beaver, Butler, Cameron, Clarion, Clearfield, Crawford, Elk, Erie, Fayette, Forest, Greene, Indiana, Jefferson, Lawrence, McKean, Mercer, Potter, Venango, Warren, Washington and Westmoreland.
To file a claim with the EEOC, contact your local EEOC office below. More information about filing a claim with the EEOC can be found at https://www.eeoc.gov/facts/howtofil.html.
EEOC — Philadelphia District Office
21 South 5th Street 4th Floor
Philadelphia, PA 19106
Phone: (215) 440-2600
TTY: (215) 440-2610
EEOC — Pittsburgh Area Office
1001 Liberty Avenue Suite 300
Pittsburgh, PA 15222-4187
Phone: (412) 644-3444
TTY: (412) 644-2720
C. What are my time deadlines?
Do not delay in contacting the PHRC or EEOC to file a claim. There are strict time limits in which charges of employment discrimination must be filed. To preserve your claim under state law, you must file with the PHRC (or cross-file with the EEOC) within 180 days or with the EEOC (or cross-file with the state agency) within 300 days of the date you believe you were discriminated against. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the state and federal administrative agencies.
You may also wish to check with your city or county to see if you live and/or work in a city or county with a local anti-discrimination law, or “ordinance.” Some cities and counties in Pennsylvania (including Philadelphia and Pittsburgh) have agencies that process claims under local ordinances (such as sexual orientation and gender identity claims not covered under federal or state law) and may be able to assist you. These agencies are often called the “Human Rights Commission,” “Human Relations Commission,” or the “Civil Rights Commission.” Check your local telephone directory or government web site for further information.
D. How can I or my attorney pursue a claim in court in Pennsylvania?
If your case is successfully resolved by an administrative agency, it may not be necessary to hire an attorney or file a lawsuit (to resolve your case, you probably will be required as to sign a release of your legal claims). If your case is not resolved by the PHRC or EEOC, and you may want to continue to pursue the matter, you will need to pursue your claim in court. A federal employment discrimination case cannot be filed in court without first going to the EEOC, as discussed above, and having the EEOC dismiss your claim. This process is called “exhaustion” of your administrative remedy. Similarly, before you can proceed with a lawsuit based on your state discrimination claim, you must file with the PHRC.
Because Pennsylvania’s state anti-discrimination statute does not permit the punitive damages (damages intended to punish the employer) allowed under federal law, and does not allow for a trial by jury, many Pennsylvania attorneys choose to file employment discrimination cases in federal court. A case filed in state court using federal law may be “removed” to federal court by the employer because it involves a federal statute, such as Title VII or the ADEA. Compensatory damages are not capped or limited under the state anti discrimination statute, however, as they are under federal law.
The EEOC must first issue the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” (Form 161) before you can file a case based upon your federal claim. A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. (Be sure to mark down that date when you receive the notice.)
A lawsuit based on your state claim must be filed within two years of the PHRC’s dismissal of your complaint, as long as your complaint was either dismissed or still pending within one year of the original PHRC filing date.
These deadlines are called the “statute of limitations.” If you have received one of these agency dismissal letters, do not delay consulting with an attorney. If your lawsuit is not filed by the deadline, then you may lose your ability to pursue a discrimination case.
To schedule a consultation with Pittsburgh workplace retaliation attorney Charles A. Lamberton, call 412-258-2250.