Unlawful Retaliation for Sexual Harassment Claim

Title VII Retaliatory Discharge Unlawful retaliation requires proof of participation in protected activities

To prove a case of unlawful retaliation, you must show that:

  1. you engaged in "participation" or "opposition" that is protected by Title VII and
  2. your employer was aware of your participation and
  3. you suffered an adverse employment action at about the time the company became aware of your protected activity and
  4. the company took action against you because of your protected activity

These elements are most often proved using indirect or circumstantial evidence, as is explained next.

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The employer then has an opportunity to explain the reason for its action. If the employer can show that it had a legitimate reason for its action that was not discriminatory, it can win the case, unless you can show that the employer's stated reason was pretextual (not the real reason for its action).

If, on the other hand, you have direct evidence of retaliation, then the company must show that it would have taken the same action against you even if you had not engaged in protected activity (i.e., that it had a legitimate reason for the action it took).

Here is how these rules operate. Two employees claimed that their company retaliated against them because they reported a supervisor for sexual harassment by filing a grievance with their union. The protected activity was the filing of a grievance. Employer knowledge was established by the fact that the union advised the company that a grievance had been filed.

Shortly after they filed the grievance, one of the employees was fired for theft and for being in an unauthorized area. The other employee was fired for misconduct such as "giving the finger" to a supervisor, being argumentative, and disobeying orders. These were the adverse actions.

The court decided that there was a link between the protected activity and the adverse actions because the firings followed closely on the heels of the grievance.

The employee who was fired for theft and trespassing showed that she was terminated before the matter had been fully investigated and that the company made a "snap decision" to let her go without hearing her side. Normally, the company would have fully investigated the matter and would have given the employee a chance to explain her case with the help of a union representative. The court found that the company had not put forth any legitimate reason for her discharge. The first grievant won her case.

The company had, however, given reasons for the second person's discharge (insubordination) that appeared to be valid. So, in order to win her case, she had to show that these reasons were not the real reasons for her termination. She accomplished this by showing that, after the grievance was filed, management referred to the two women as "fucking bitches" and threatened to "get them." Her case gained support from the testimony of a supervisor who admitted that the women were good workers and that, after they filed the grievance, their supervisor had gone out of his way to find problems with their work. For all these reasons, the court found that the employer's stated reason for firing the second worker was a pretext for unlawful discrimination, and she won her case as well.

Proving Retaliation

Michelle was a special education teacher. During the Christmas holidays, the principal of the school kissed her and suggested to her that they have sex. He told her to wear short skirts because he was a "leg man" and insisted on making references to the movie Looking for Mr. Goodbar when he talked to her. (In that movie, a special education teacher who picked up men in bars was eventually killed by one of them.) Michelle also claimed that the principal touched her and stood outside of her classroom staring at her.

Michelle rebuffed all the principal's efforts to have a relationship with her, and she claimed that he refused to hire her for the next school year after she filed a charge with the EEOC complaining of sexual harassment.

How could Michelle prove a case of retaliation? Michelle was able to prove that she had filed a charge against the school based on the harassment by the principal and that the school knew that she had filed a charge. Michelle also was able to show that the school had taken an adverse action against her by failing to renew her contract.

What defenses would help the school win the case? To make out a case of retaliation, Michelle also needed to show that the school refused to renew her contract because she had filed a charge, and this she could not do. The school proved that it had not rehired Michelle because she was repeatedly late or absent and because she was unable to obtain the certifications that she needed to continue as a special education teacher. So, the school had a legitimate reason for not rehiring her that had nothing to do with her charges of sexual harassment and defeated Michelle's retaliation claim.

What Is Retaliatory Action?

A woman worked as chief engineer for a telecommunications company. She complained that her supervisor repeatedly tried to engage her in discussions about his sex life. She complained to his superiors and to the human resources department but was told that her complaints were disruptive and that she should resign if she could not tolerate her work environment. A few days later, she lost her job as chief engineer and was assigned to administrative duties. She was moved to a job that required a lot more travel and told that her career with the company was over.

She brought a claim alleging that the company had taken away her job duties because she had complained of sexual harassment. The company countered that she could not establish a retaliation case because she had not suffered any adverse action. In the company's view, an adverse action could only be an action that affected the company's "ultimate employment decision," such as firing.

The court rejected the argument that a retaliation claim had to be based on an ultimate employment decision such as hiring or firing. Instead, the court ruled that a retaliation claim could be based on other employment decisions, such as demotion, that were not by themselves "ultimate" decisions.

A federal appeals court in another state reached the opposite conclusion in the case of a woman who claimed that, after she raised a sexual harassment complaint, her coworkers became hostile to her, a supervisor whom she had named in her complaint threatened to fire her, and she got a poor performance evaluation, which led to her being placed on final warning. She was reprimanded for not being in her work area at a time when she was advising human resources of her complaints. Eventually, she quit and sued the company.

Although a jury awarded the plaintiff damages, on appeal her retaliation claim was dismissed by the court because it did not involve an "ultimate employment decision." The court reasoned that Title VII was not concerned with every action that an employer might take, such as intermediate decisions that did not directly affect the ultimate decision. In this case, the court refused to hold the company responsible for acts of employees that were not ultimate employment decisions. It also held that the final warning fell in this category because it did not affect her employment.

Is This Retaliation?

A woman truck driver for a garbage company complained of sexual harassment at work. After she was fired, she filed a sex discrimination charge. The case was settled, and the garbage company agreed to reinstate her. Before she returned, the company directed its employees not to sexually harass her. It also instructed them to spy on her and report on what she did and told them not to socialize with her.

The woman returned to work and eventually learned what her coworkers had been told by management. The same month that she returned, a manager yelled at her, claiming that he had heard that she was going to sue the company again. One month later, she began to work intermittently because she began to suffer from panic attacks. A few months later, she resigned from her job and brought a claim of unlawful retaliation against the company.

A court held, in a close decision, that the company's actions-spying on the woman, having her shunned, and yelling at her-were not unlawful retaliation because there was no evidence that this affected her terms, conditions, or benefits of employment. The court also believed the company's claims that it had remedied these problems.

What Acts Are Protected?

Morris had managed a production operation for many years. A woman at his facility complained of sexual harassment by her supervisor, and her complaint was investigated by the company's manager. Morris was present when the EEO manager searched the accused harasser's desk and found pornographic videotapes. When the complainant asked him about the search, he volunteered that the videotapes had been found. The EEO manager then ordered him not to discuss the investigation with anyone. A little while later, Morris asked an employee about his involvement in the investigation. He was first suspended and then fired, in part because he had used poor judgment in discussing the investigation with two employees.

Morris claimed that his discharge was retaliation in violation of Title VII. The company argued that he had not engaged in any protected activity and that there was no connection between protected activity and his discharge. The court agreed. It found that Morris' participation in an internal company proceeding, rather than administrative or judicial proceedings, was not protected by Title VII.

SEXUAL HARASSMENT CLAIMS STEP-BY-STEP by Dale Callender. Copyright ) 1998 by Barron's Educational Series, Inc. Published by arrangement with Barron's Educational Series, Inc.

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