Know Your Rights: Supreme Court Endorses Retaliation Claims

Know Your Rights
Supreme Court Endorses Retaliation Claims

By JAMES A. BROWN

According to statistics from the U.S. Equal Employment Opportunity Commission, nearly one-third of all charges it received last year included an unlawful retaliation claim. This high percentage is partially attributable to the fact that retaliation claims are typically easier to prove than employment discrimination claims based on race, gender, age, disability, etc.

James A. Brown is an attorney based in Manhattan. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.

The U.S. Supreme Court, in its 2006 Burlington Northern decision, contributed to making retaliation claims based on Title VII of the Civil Rights Act of 1964 (prohibiting discrimination based on race, gender, national origin, religion) easier to prove. This topic was covered in an earlier Aug. 18, 2006 column, "Retaliation Claims Now Easier."

Last month, the Supreme Court ruled that two other anti-discrimination statutes also offer protection against unlawful retaliation. The two statutes are the Age Discrimination in Employment Act ("ADEA"), as applied to Federal employees, and 42 U.S.C. § 1981, which prohibits racial discrimination in the workplace.

Easier Claims

In general, retaliation claims succeed more often than discrimination claims because juries have an easier time recognizing an adverse action taken because an employee complains of discrimination. The "cause and effect" is easy to explain and simple to comprehend.

Yet not all instances of workplace retribution qualify as unlawful retaliation. A retaliation claim must follow recent complaints about discriminatory practices or so-called "protected activity." Thus, if you feel your employer retaliated against you because you complained about your workload or working conditions in general, no retaliation claim exists. However, if you suffer some adverse action in response to a complaint of discrimination based on gender, race, age, disability, etc., you may state a claim for unlawful retaliation.

Informal Complaints, Too

In order to satisfy the "protected activity" requirement, a complaint of discrimination may be either formal or informal. In other words, protected activity includes: lawsuits complaining of discrimination, EEOC Charges of Discrimination, complaints filed with the State Division or City Commission on Human Rights. Protected activity also includes the informal discrimination complaint made directly to one's employer. In addition, as a part of any successful retaliation claim, you must prove that your employer received notice of your complaint and that your complaint was made in good faith.

Once there is evidence of protected activity (and proof that your employer was on notice of your complaint), the focus turns to whether the employee suffered an "adverse action." Burlington Northern informs us that "adverse action," under Title VII, now includes any action which would "dissuade" a reasonable person from complaining about discrimination. Thus, adverse actions may now include, in addition to the usual disciplinary penalties (i.e., termination, suspension or demotion), certain transfers as well as significant changes to working conditions.

Last month, the Supreme Court in Gomez-Perez v. Potter addressed retaliation and the age discrimination provisions of the ADEA. When the ADEA was amended in 1972 to cover Federal employees, the new amendments did not expressly provide for retaliation claims filed by those Federal employees. Still, the Supreme Court concluded that Federal employees could file retaliation claims because retaliation is merely another form of intentional discrimination under the ADEA.

Race Claims

Similarly, in CBOCS West v. Humphries, the Supreme Court found that 42 U.S.C. § 1981 also prohibits unlawful retaliation even though it, too, omits any reference to retaliation. Section 1981 is a post-Civil War era statute which bars discrimination based on race. The Federal statute does not require employees who are alleging racial discrimination to first file a Charge of Discrimination with the EEOC, which mandates that charges be filed within 300 days after the alleged unlawful practice. Rather, Section 1981 has a four-year statute of limitations in New York, and places no cap on the recovery of monetary damages.

CBOCS West in some ways was an easy decision for the Supreme Court because the Federal appeals courts addressing this issue had already concurred that Section 1981 prohibits retaliation. Yet it was this same unanimity which concerned employee advocates who questioned why the Supreme Court chose to review a case when there was no split in opinion regarding this question of retaliation. Fortunately, the Supreme Court, recognizing this uniformity of opinion and valuing precedents, found that those who have suffered retaliation may also rely on Section 1981 for this increasingly popular claim.