Retaliation claims are on the rise, and it’s no surprise, says attorney Joseph L. Beachboard. They’re relatively easy to establish and they often pay off even when the underlying charge is not sustained—but they’re also easy to prevent.
What makes retaliation suits so easy to bring? asks Beachboard, who is a shareholder in the Los Angeles office of law firm Ogletree Deakins. There are three main reasons, he says. (Beachboard’s tips came at the SHRM Annual Conference and Exposition held recently in Las Vegas.)
First, says Beachboard, there is a relatively low standard for bringing a charge. You have to show 1) a protected activity; 2) an adverse action, and 3) a causal link between the two.
The causal link can often be just “temporal proximity,” that is, just showing that the adverse action occurred soon after the protected activity, Beachboard explains. That amount of time can be as long as 6 months to a year, he adds.
Second, juries are predisposed to find retaliation. They try to apply the law, Beachboard says, but it’s often confusing. They are reluctant to label someone “harasser” or “racist,” but it’s pretty easy to label someone as “retaliator.”
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Burlington Northern Sets the Bar
In the 2006 Burlington Northern case, the court clarified the adverse action standard. It said that Title VII’s anti-retaliation provision is not limited to adverse “employment” actions (like hiring and firing) but includes any “materially adverse change.”
A plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
This is the critical aspect, Beachboard says. It doesn’t have to be a firing, just an adverse action.
Thompson v NAS
In Thompson v. Nash, an engaged couple, Eric Thompson and Miriam Regalado, worked for the same employer, NAS (North American Stainless). The EEOC notified NAS that Miriam had filed a charge of discrimination. Three weeks later, Eric was fired.
The two issues for the court were, does an employer violate Title VII’s anti-retaliation provision by firing the fiancé of an employee who complained about discrimination because of the protected activity? And also, does the fired employee have standing to sue, or only the employee who filed the complaint?
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The court held that NAS’s discharge of Eric based on Miriam’s protected activity would violate Title VII’s anti-retaliation provision. The question is whether the employer’s action would dissuade a reasonable worker from making or supporting a charge of discrimination.
The Supreme Court stated, “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she know that her fiancé would be fired.”
In tomorrow’s Advisor, whether Eric (or any associate) had standing, and an introduction to the best way to avoid lawsuits—the HR audit.