Employee Rights No Fees Unless We Win
TITLE VII Retaliation
Title VII of the Civil Rights Act of 1964 (42 United States Code section 2000e, et seq.) (Title VII), prohibits employers from discriminating against employees and applicants for employment based on race, color, religion, national origin, and sex. Signed into law by President Lyndon B. Johnson at the height of the Civil Rights Movement, Title VII was initially a laxly enforced reminder to employers not to discriminate. Title VII also created the Equal Employment Opportunity Commission (EEOC), which was charged to enforce Title VII and eventually several other federal laws prohibiting employment discrimination. In 1972, Congress granted the EEOC the authority to file lawsuits directly against employers. Congress later passed the Pregnancy Discrimination Act of 1978, which amended Title VII to clarify that discrimination based on pregnancy, childbirth, or related medical conditions, as well abortion, is unlawful sex discrimination. The Civil Rights Act of 1991 (42 United States Code section 1981 et seq.) amended several sections of Title VII, giving employees the right to request a jury trial and overruling several decisions by the United States Supreme Court that made it more difficult for employees to prevail in Title VII lawsuits. The Lilly Ledbetter Fair Pay Act of 2009 (29 United States Code sections 621, 626, 633a, 791, 794, 794a and 42 United States Code sections 12111, 12117, 12203, 1981a, 2000d, 2000e, 2000e-16 and 2000e-5) affirms the rights of employees subjected to compensation discrimination under Title VII and other laws. Title VII is a federal law that aims to ensure that employers make employment decisions based on objective, job-related criteria. Retaliation is the most frequently alleged basis of discrimination in lawsuits filed in federal court and the most common type of discrimination finding in federal cases.
While employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons, under Title VII it is unlawful for an employer to discriminate against any employee or an applicant for employment because he or she has “opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 United States Code section 2000e-3(a).
To bring a claim for retaliation a plaintiff must show that:
- the plaintiff “engaged in activity protected under Title VII,”
- “the employer subjected [the plaintiff] to an adverse employment decision,” and
- “there was a causal link between the protected activity and the employer's action.” Passantino v. Johnson & Johnson Consumer Prods. (9th Cir. 2000) 212 F.3d 493, 506.
A protected activity under Title VII may include making a charge, testifying, assisting, or participating in any manner in proceedings or hearings under relevant statutes, or opposing acts made unlawful by Title VII.
Example: Passantino began working for Johnson and Johnson Consumer Products, Inc. when she was 25 years old. Over the next 18 years she rose to become a National Account Manager and one of the company’s most successful female managers. She was characterized by executives as "a leader in her field" and was personally responsible for selling $12 million in product annually, 25% of the total annual sales for the company’s “military” division. She was successful despite the characterization of the division by one of its own executives as an “old boy network.” She was on the "developmental" path, the career path for employees within sales who are in line for executive and management positions. Her performance reviews were consistently either "outstanding" or "above average." A supervisor stated that Passantino was "well qualified" and should be "strongly considered" for promotions within the company. Unfortunately, the method for determining advancement within the company was not systematic or fair. Employees were promoted through "a good old boy system that allowed discrimination and discouraged reasonable questions about the promotion process.”
Despite her qualifications and positive reviews, Passantino began to suspect that, because of her sex, she was being passed over for promotions for which she was qualified. There were several reasons for her belief that she was being discriminated against. One reason was that her male supervisor made sexist comments, referring to women buyers as "PMS," "menstrual," and "dragon lady," and he noted that most women probably just wanted to stay home. Passantino’s supervisor also told her that she should consider looking outside the company for employment because the company was not committed to promoting women. Two of Passantino’s male coworkers frequently expressed a condescending attitude towards women.
When Passantino complained to her supervisor about her coworkers’ condescending behavior, Passantino’s supervisor told her it was her problem to get along with her coworkers.
Following her complaint, the offensive conduct of all three men intensified. In a subsequent performance review, Passantino’s supervisor gave her a low rating for "relationship with peers." From that point on coworkers rolled their eyes at her suggestions and managers often excluded her from conversations. The company exiled Passantino from any opportunities for advancement. When Passantino expressed interest in a sales administration manager position, she was not interviewed and a male co-worker whom she had complained of was awarded the position. Passantino learned about three newly-created positions she felt were superior to her current position; however, the positions were filled before she had a chance to apply. Two of the positions were filled by men she had complained about and the third position was filled by a male employee from outside of the division. Passantino was then warned that if she made a formal complaint “she would have to ‘live with the burden of coming forward’ because the decision to complain ‘could have many ramifications.’” Despite these warnings, Passantino lodged a formal complaint with the Human Resources department. In a subsequent division meeting, the Vice President of Sales advised that everyone needed to "shape up and act professional" or they would be "off the team." He also indicated his support for the supervisor Passantino had complained about, which was a way of rebuking Passantino publicly for the complaints of discrimination she had made.
Passantino then filed a complaint with the EEOC. After that the company subjected Passantino to a broad range of retaliatory acts. Her duties were reduced. She was excluded from division manager meetings. She was given demotions sometimes disguised by the company as promotions or lateral transfers. She was told she would have to take a step back in order to advance. She was transferred to a location with a higher cost of living and offered a demotion to a lower paying position. Passantino constantly worried, cried, and felt trapped and upset. She spent less time with her family because she feared she would lose her job, given her declining performance ratings. She suffered stomach problems, rashes, and headaches for which she sought medical attention.
Passantino filed a lawsuit, which alleged violations of Title VII, against Johnson and Johnson in United States District Court for the Western District of Washington. A jury later awarded a large verdict in favor of Passantino.
On appeal, the United States Court of Appeals for the Ninth Circuit ruled that the actions properly attributed to Johnson and Johnson were sufficient to constitute retaliation within the meaning of Title VII.
Passantino v. Johnson & Johnson Consumer Products, Inc. (9th Cir. 2000) 212 F.3d 493.
Under Title VII, retaliation is an employer action that would have been materially adverse to a reasonable employee. “[T]hat means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination. Burlington Northern & Santa Fe Railway. Co. v. White (2006) 548 U.S. 53, 57.
In fact, an employer is not allowed to do anything in response to an employee’s act of engaging in an activity protected under Title VII that would discourage someone from resisting or complaining about future discrimination. Examples of actions of an employer that could be retaliation, because they discourage someone from resisting or complaining about future discrimination, include:
- Punishing an employee by purposely changing the employee’s work schedule to conflict with an employee’s ability to commute to the workplace or carry out family responsibilities.
- Increasing scrutiny of an employee, including disciplining an employee for behavior that while technically objectional the employer had previously approved of, allowed, or at least tolerated.
- Disseminating false rumors about the employee (e.g. false information that a female employee had slept with her supervisor to get a promotion).
- Threatening to contact the authorities (e.g. the employer saying he will have the employee deported or will frame him by planting drugs in his locker).
- Physical or verbal abuse.
- Transferring an employee to a less desirable position (e.g. a transfer to a boring, thankless job with no opportunity for advancement and where the employee is now isolated from his or her coworkers).
- Giving an employee a performance review that is lower than it should be.
In contrast, under the Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996, an “adverse employment action” must materially affect the terms, conditions or privileges of employment. It is not enough that the action may deter or dissuade others from engaging in protected activity. Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1050-1052.
Further, an employee may not be retaliated against if the employee opposes an activity by the employer which the employee reasonably and in good faith believes to be unlawful. So, an employee who honestly and reasonably believes that an employer is committing a wrong may not be terminated for trying to oppose or report that behavior. To find that Title VII “only protects those who can prove that the conduct at issue is actually unlawful ‘[w]ould not only chill the legitimate assertion of employee rights under Title VII but would tend to force employees to file formal charges rather than seek conciliation or informal adjustment of grievances.” Trent v. Valley Electric Assn. Inc. (9th Cir. 1994) 41 F.3d 524, 526, 527.Standard of Proof
As with most retaliation claims arising out of employment, Title VII retaliation claims require a connection between the unlawful retaliation and the protected conduct of the employee. In University of Texas Southwestern Med. Ctr. v. Nassar (2013) 570 U.S. 338, 359-360, the United States Supreme Court ruled that Title VII retaliation claims must be proved according to traditional principles of but-for causation. The but-for causation test asks whether the injury or damages suffered would not have occurred but for the defendant's act. The United States Court of Appeals for the Third Circuit, in later interpreting University of Texas Southwestern Med. Ctr. v. Nassar, ruled that when asserting a Title VII retaliation claim at the prima facie (a legal claim having enough evidence to proceed to trial or judgment) stage, “a plaintiff need only proffer evidence sufficient to raise the inference that her engagement in a protected activity was the likely reason for the adverse employment action, not the but-for reason.” Carvalho-Grevious v. Del. State Univ. (3rd Cir. 2017) 851 F.3d 249.Contact Us