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Tag: pretext

It’s Not What It Looks Like: Retaliation 101

July 31, 2019

With the inclusion of anti-retaliation provisions, Congress protected the rights granted in several employment related statues. An anti-retaliation provision prohibits any adverse employment action taken against an employee because that employee either opposed a practice prohibited by law or participated in the enforcement of a right provided by law. Some statutes provide both “opposition” and “participation” protections such as the Americans with Disabilities Act (ADA) 42 U.S.C. § 12203(a), 42 U.S.C § 1981, USERRA 38 USC § 4311(b), American Discrimination in Employment Act (ADEA), Federal Labor Standards Act (FLSA) and Title VII of the Civil Rights Act of 1964. Some statutes include only a “participation” protection such as the Family Medical Leave Act 29 U.S.C. § 2615(a)(1)-(2).

To prove retaliation, an employee can either present overt (also known as direct) evidence of the employer’s intent to retaliate. Or, the employee can provide circumstantial (also known as indirect) evidence, which can then be rebutted by the employer. In order to establish the basis or “prima facie” circumstances, an employee must prove the following: (1) that she engaged in statutorily protected conduct, (2) that she suffered an adverse employment action, and (3) that a causal connection exists between the two.

The ADEA, ADA, FMLA and Title VII require a “but for” causal connection not just the lesser “motivating factor”. For FMLA claims, the employee must first prove that he was eligible and entitled to FMLA leave before proving the remaining parts of the prima facie case.

Once the employee has established a prima facie case, the burden shifts to the employer to articulate a non-discriminatory reason for the adverse action. If the employer does so, the burden shifts back to the employee to demonstrate that the employer’s proffered reason was pretextual by presenting evidence sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.

An “adverse employment action” is any type of action that would have made a reasonable employee reluctant oppose the practice or participate in the enforcement of the law. Adverse actions take many forms. These include, but are not limited to, termination of employment, demotion, failure to hire or rehire, failure to promote, reduction or denial of benefits, etc. While valid business decisions will necessarily require some of these adverse actions, the employer must demonstrate that its reasons are indeed valid and not pretext for retaliation.

The devil is really in the details when it comes to pretext. Some of the most common tell-tale signs are: suspicious timing, inconsistent reasons, comments that call stated reason into question, conflicting evidence such as citing poor performance but having no record of discipline, among others.

Remedies available to an employee who is successful on a claim of retaliation would be entitled to extensive damages.

Protected Status + Adverse Employment Action = Discrimination?

April 14, 2018

Often employees are convinced they are victims of discrimination at the hands of employers, through its management or supervisory staff. Often, certain issues are also clear including the employee’s membership in a protected category: Black, female, Muslim, pregnant, for instance, and the employee having experienced a specific adverse employment decision such as dismissal, failure to promote, under compensation, etc. However, it is rarely ever crystal clear that an employee can link the protected category to the adverse decision. Essentially, the employee must clearly answer the question: why, exactly, is this happening to me?

A recent decision from the Eleventh Circuit Court of Appeals which applies to Georgia, Florida and Alabama gives us a good example of the everyday behaviors at the workplace capable of answering this question: “why”.

In EEOC v Exel, the Court upheld a jury verdict awarding back pay on the finding that an employer’s policy of hiring current employees over external candidates was pretextual for sex discrimination. First, the Court accepted evidence that the policy was not mandatory nor was it uniformly applied. Thus, even though neutral on its face, the policy could be bypasssed and used as a cover for other nefarious hiring decisions. Next, the Court identified such nefarious bias (in this case it was against a woman), in the following actions of the hiring manager:

  • “limited his contact with pretty much all the females in [the] office”

  • asked another to “manage the ladies in the office.”

  • was “standoffish” with female employees

  • treated female employees differently than male employees

  • would come into work in the morning and “go straight to his office..”

  • “…wouldn’t speak to any of [the female employees].”

  • stated several times “that he would never put a woman in a management position”

The Court found this evidence is to be “sufficient to tie “generalized discriminatory behavior to the specific employment decision at issue.””

For employers, this case warns of the use of a preferential policy, even though apparently neutral, could be problematic in its day-to-day application.

For employees who think they are being discriminated against, this case gives an example of the sort of evidence required to be successful at trial.