By Eric Bachman
Most laws prohibiting discrimination based on race, sex, religion, etc. also make it unlawful to retaliate against someone who complains about or helps to support another person’s claim of discrimination.
While these complementary protections serve a common purpose of helping to stamp out discrimination, an important distinction exists in how courts analyze retaliation versus discrimination claims. That is, different definitions of what constitutes an “adverse employment action” apply depending on whether the lawsuit alleges retaliation or discrimination.
A federal appellate court, the U.S. Court of Appeals for the Sixth Circuit, analyzed this issue over the summer in a case involving an employee who claimed that her employer retaliated against her after she filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC).
Sheryl Hubbell worked for FedEx SmartPost, Inc. (FedEx) for about eight years until Fed Ex fired her in 2014. While employed, Hubbell filed at least two EEOC charges alleging gender discrimination and retaliation for complaining about it.
Hubbell later sued FedEx in court for terminating her employment in retaliation for filing those EEOC charges.
Hubbell won her trial in district court, and a jury awarded $85,600 in front and back pay damages, $30,000 in non-economic damages, and $300,000 in punitive damages. FedEx appealed the decision, arguing Hubbell’s presented insufficient evidence to support her claim of retaliation.
Title VII of the Civil Rights Act of 1964 prohibits employers from retaliating against an employee who has filed a charge with the EEOC. As part of their initial burden of making out a retaliation claim (called the prima facie case), a plaintiff must show that the employer’s conduct was “materially adverse,” which in this case means that “it might well have dissuaded a reasonable working from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
FedEx argued that Hubbell did not satisfy the definition of “adverse employment action” under Title VII, which the company cited as conduct that “affect[s] the terms and conditions of employment.” Notably, however, FedEx cited the definition of adverse employment action required of plaintiffs alleging discrimination, not retaliation, under Title VII.
A plaintiff suing under Title VII’s anti-retaliation provision must demonstrate that the adverse employment action “might well dissuade a reasonable worker from making or supporting a charge of discrimination.” The definition of adverse employment action under a Title VII retaliation claim is less demanding (and thus easier to meet for employees) than a claim of discrimination.
The trial court had incorrectly held that the only materially adverse action in support of Hubbell’s retaliation claim had to do with her not being able to clock in and out at the same time as her fellow employees. The Sixth Circuit rejected this analysis and found that, under the correct “might well dissuade” standard for retaliation claims, evidence remained of other adverse employment actions taken in retaliation for filing the EEOC charge.
This included evidence showing FedEx subjected Hubbell to increased supervision, specifically that her bathroom breaks were timed and tracked. Hubbell’s supervisor also issued Hubbell written discipline, which she claimed was unjustified and violated company policy.
Accordingly, the appellate court affirmed Hubbell’s jury trial verdict on retaliation.
- The definition of a “materially adverse action” differs between claims of retaliation and claims of discrimination.
- Discrimination claim definition of “materially adverse action” = “substantially affects the terms and conditions of employment”
- Retaliation claim definition of “materially adverse action” = an action that “might well have dissuaded a reasonable worker from making or supporting a charge of discrimination” (which can include things like being ostracized, subject to increased scrutiny, etc.)
- The showing required for a Title VII retaliation claim is thus less burdensome than what a plaintiff must demonstrate for a Title VII discrimination claim.
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Bryan A. Chapman, Esquire
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