What is “materially adverse” when establishing a retaliation claim?

By Bryan A. Chapman, Esquire

Retaliation is the most common workplace discrimination complaint filed with the Equal Employment Opportunity Commission (EEOC). Generally, retaliation occurs when a worker complains about workplace discrimination and is then targeted by his or her employer for harsher treatment.

Three elements of a prima facie retaliation case.

The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006).  To establish a claim for retaliation, a plaintiff must show:

1)         they engaged in protected activity;

2)         the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,

3)         there is a causal connection between the protected activity and the asserted adverse action.

What does “materially adverse” mean?

Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Burlington, 548 U.S. 68.

Suspending supervisory responsibilities or significantly reducing responsibilities.

A suspension, demotion, or termination can be materially adverse.  However, taking away an employee’s supervisor duties or significantly reducing their responsibilities can also be materially adverse for the purpose of establishing a retaliation claim. Czekalski v. Peters, 475 F.3d 360, 364 (D.C.Cir.2007) (“[W]ithdrawing an employee’s supervisory duties … constitutes an adverse employment action.” (quoting Stewart, 352 F.3d at 426) (internal quotation marks omitted)); id. at 365 (observing that “reassignment… with significantly diminished responsibilities” would constitute an adverse employment action); Kessler v. Westchester County Dep’t of Soc. Serv., 461 F.3d 199 (2d Cir. 2006); Davis v. City of Sioux City, 115 F.3d 1365 (8th .Cir. 1997)

Reprimand or negative job performance evaluation.

A reprimand or negative job performance evaluation can be materially adverse. Nye v. Roberts, No. 03-1683, (4th Cir. 2005) (unpublished) (In this case, however, the evidence is such that a reasonable jury could find that, in the context of the Board’s system of progressive discipline, the reprimand and performance evaluation resulted in a material change in Nye’s employment status.); Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“…he received much lower performance evaluations than he had received before filing his employment discrimination charge…  There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports, including two written reprimands.”)

Pursuing false criminal charges.

Pursuing false criminal charges against an employee can be materially adverse. Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006) (“An employer can effectively retaliate against an employee…Berry v. Stevinson Chevrolet, 74 F. 3d 980, 984, 986 (CA10 1996) (finding actionable retaliation where employer filed false criminal charges against former employee who complained about discrimination).”; Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996) (“Other courts concluding that Title VII extends to former employees have held that the filing of charges can constitute the requisite adverse action.”); Beckham v. Grand Affair of NC, Inc., 671 F.Supp. 415 (W.D.N.C. 1987)

Creating or perpetuating a hostile work environment.

Retaliatory harassment can constitute an adverse employment action. Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001); Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005) (“The weight of authority supports the view that, under Title VII, the creation and perpetuation of a hostile work environment can comprise a retaliatory adverse employment action under 42 U.S.C. § 2000e-3(a).  See, e.g., Von Gunten v. Maryland…”).

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Employers con harassment victims by means of a “see no evil, hear no evil” policy.

By Bryan A. Chapman, Esquire

Particularly, in the case of co-worker sexual harassment, an employer can only be found liable for sexual harassment if management is aware that sexual harassment is occurring in the workplace.  As a result, some employers have adopted a “see no evil, hear no evil” strategy.

Management may be fully aware that sexual harassment (or some other type of workplace harassment) is occurring, but deliberately pretend that is is not occurring in order to avoid liability. Management may discourage a victim of sexual harassment from complaining. The victim’s complaint of harassment may be ignored or discarded by management. If the victim continues to complaint, management may seek to discredit the victim by papering their personnel file with allegations of poor job performance and misconduct, which may lead to termination.  Spicer v. Com. of Va., Dept. of Corrections, 66 F. 3d 705, 710 (4th Cir. 1995) (We reiterated this requirement in Swentek, holding that an employer is liable only “where it had `actual or constructive knowledge of the existence of a sexually hostile work environment and took no prompt and adequate remedial action.’” 830 F.2d at 558 (quoting Katz) (emphasis added).  Knowledge of work place misconduct may be imputed to an employer by circumstantial evidence if the conduct is shown to be sufficiently pervasive or repetitive so that a reasonable employer, intent on complying with Title VII, would be aware of the conduct.); Jackson v. Quanex Corp., 191 F. 3d 647, 664 (6th Cir. 1999)

“An employer cannot avoid Title VII liability for coworker harassment by adopting a “see no evil, hear no evil” strategy.” Ocheltree v. Scollon Productions, Inc., 335 F. 3d 325, 334 (4th Cir. 2003)  “Once the employer has notice, then it must respond with remedial action reasonably calculated to end the harassment.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008)

Therefore, victims of workplace sexual harassment (or any other kind of workplace harassment) should document each incident of harassment in real time.  Documentation can be evidence of sexual harassment.  Victims of workplace sexual harassment should seek corroboration from witnesses and other victims of sexual harassment; there is strength in numbers. A victim of sexual harassment should review their employer’s sexual harassment policy and follow the procedure. Finally, victims of workplace sexual harassment must complaint to management and/or government entities, such as, the Equal Employment Opportunity Commission (EEOC). A victim should put their complaint in writing and keep a copy. Sending a copy of the harassment complaint to the employer, by email, can create an indelible record.

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Retaliation: Surviving the Employer’s Accusation of Poor Performance or Misconduct.

By Bryan A. Chapman, Esquire

In a workplace, retaliation occurs when an employee complains about or opposes discrimination and is then subject to harsh treatment, such as, harassment or termination.  The harsh treatment must be a direct result of the employee’s complaint about or opposition to discrimination.  In other words, “but for” his or her complaint or opposition, the employee would not have been subject to harsh treatment.

The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006).  To establish a prima facie claim for retaliation, a plaintiff must show:

1)       they engaged in protected activity;

2)       the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,

3)       there is a causal connection between the protected activity and the asserted adverse action.

Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Burlington, 548 U.S. 68.

To protect itself against a retaliation claim, an employer may accuse an employee, who has a long history of satisfactory job performance, of being a bad employee.  By accusing the employee of poor job performance or misconduct, the employer creates a non-retaliatory excuse for its retaliatory conduct. 

If the employer can advance a non-retaliatory explanation for its action, the employee’s retaliation claim may not meet the “but for” standard and be subject to dismissal by an administrative agency or court.  To counter this, an employee must demonstrate that the employer’s excuse is not believable or mere pretext for retaliatory conduct.

An opportunistic employer may simply wait for an opportunity to accuse the employee of poor performance or misconduct.  However, this ploy may not always succeed. Hamilton v. General Electric, 556 F.3d 428 (6th Cir. 2009) (We have held that when an “employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,” the employer’s actions constitute “the very definition of pretext.”)  An employee who complains about or opposes discrimination should anticipate retaliation and not let their guard down.

Management may conspire against the employee or solicit complaints from the employee’s co-workers.  Under these circumstances, new accusations of poor performance or misconduct may seem contrived. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 496 (D.C. Cir. 2008) (“[t]he question is not whether the underlying…incident occurred; rather, the issue is whether the employer honestly and reasonably believed that the underlying…incident occurred”)  An employee should document his or her experience in the workplace and identify potential witnesses.

If you believe your employer is retaliating against you, seek the advice of an experienced civil rights attorney as soon as possible.

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Hostile Work Environment And Diminished Job Performance

By Bryan A. Chapman, Esquire

A hostile work environment is a workplace that is hostile, abusive, and intimidating.  Federal laws prohibit workplace harassment that is based on an employee’s race, sex, religion, national origin, age, or disability. 

In Amirmokri v. Baltimore Gas & Electric Co., 60 F3d 1126 (4th. Cir. 1995), based on evidence that Amirmokri was called names including “the ayatollah,” “the local terrorist,” and “camel jockey,” the Fourth Circuit Court of Appeals allowed the case to go to trial on the issue of hostile environment harassment.  The Court focused on evidence that Amirmokri’s supervisor had intentionally embarrassed him by assigning him impossible tasks and telling co-workers that he was incompetent, which may have negatively affected both his performance and its evaluation.

Working in a hostile work environment can result in diminished job performance.  In Weiss v. United States, 595 F.Supp. 1050 (1984), a Virginia federal court stated, “…an employer cannot use an employee’s diminished work performance as a legitimate basis for removal where the diminution is the direct result of the employer’s discriminatory behavior.” Henson v. City of Dundee, 682 F.2d 897, 910 (5th Cir.1982); DeGrace v. Rumsfeld, 614 F.2d 796, 804 (1st Cir.1980).

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Race-Based Claims Filed Under 42 USC 1981 Offer Advantages.

By Bryan A. Chapman, Esquire

Section 1981

Originally included as part of the Civil Rights Act of 1866, Section 1981(a) states in relevant part:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other

Race and ethnicity based discrimination claims, as well as, retaliation claims, brought under 42 USC Section 1981 have advantages over similar claims brought under Title VII.

Under Section 1981:

  • Plaintiffs are not required to submit their claims for review by the Equal Employment Opportunity Commission (EEOC).
  • Employer are exposed to unlimited damages.
  • The statute of limitations can be as long as four years.
  • Both employers and individual employees can be named as defendants.
  • Employers with fewer than fifteen employees can be held liable for damages.

Under Title VII:

  • Plaintiffs must submit their claims for review by the Equal Employment Opportunity Commission (EEOC) and EEOC must issue a “Right to Sue” letter.
  • Employers are exposed to a maximum of $300,000 in compensatory and/or punitive damages.
  • The statute of limitation for filing a complaint with EEOC is generally 180 days.
  • Only employers can be named as defendants.
  • Employers with fewer than fifteen employees cannot be held liable for damages.

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Cat’s Paw Theory: “Boss set me up!”

By Bryan A. Chapman, Esquire

The Cat’s Paw theory applies to some discrimination and retaliation cases.  If an employee’s supervisor, who is both biased and untruthful, convinces the employer to take an adverse action (i.e. termination, demotion, denial of promotion, suspension, etc.) against the employee, the employer could be found liable for discrimination or retaliation under the Cat’s Paw theory.  Staub v. Proctor Hospital, 562 U.S. 411 (2011)

The U.S. Supreme Court, in Staub v. Proctor Hospital, 562 U.S. 411 (2011), defined an employer’s liability under the Cat’s Paw theory:

  1. a non-decision maker, who is the employee’s supervisor, is motivated by discriminatory (or retaliatory) intent;
  2. the biased non-decision maker performs an act intended to cause the employee to suffer an adverse employment action (i.e. termination, demotion, denial of promotion, suspension, etc.); and,
  3. the biased non-decision maker’s act is a proximate cause of the adverse action.

The term Cat’s Paw comes from a French fable.  A monkey and a cat are sitting in front of a fire.  Chestnuts are roasting in the fire and the monkey wants a chestnut.  So, the monkey convinces the cat to fetch a chestnut out of the fire.  The cat fetches a chestnut but burns his paw in the process.  Meanwhile, the monkey eats the chestnut.

An employer can be found liable for discrimination or retaliation, even if the decision maker is not biased.  Liability can be established if the decision maker relies on a non-decision maker who is biased and untruthful.

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Heightened Scrutiny: Employers look for a legitimate reason to hide retaliation.

By Bryan A. Chapman, Esquire

Retaliation occurs when an employee complains about workplace discrimination and is then targeted for harsher treatment by their employer.  Harsher treatment includes, but are not limited to, refusal to hire, demotion, refusal to promote, harassment, negative performance evaluations, reprimands, termination or a change in hours.  The most frequent form of retaliation is disciplinary action or termination.

An employee may complain that retaliation occurred when the employer “papered” their personnel file with write-ups and negative evaluations after they complained about workplace discrimination.  In its defense, the employer may argue that retaliation did not occur because the write-ups and negative evaluations were based on the employee’s poor job performance or misconduct.

Even if the write-ups and negative evaluations were based on the employee’s poor job performance or misconduct, retaliation can still occur if the derogatory documentation was a result of “heightened scrutiny”.  Under heightened scrutiny, the employer observes the employee more closely than it otherwise would while waiting for opportunities to discipline the employee. Hamilton v. General Electric, 556 F.3d 428 (6th Cir. 2009) (We have held that when an “employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,” the employer’s actions constitute “the very definition of pretext.”)

In a case of heightened scrutiny, an employer acts like a spider patiently waiting for unsuspecting prey to become entangled in its web.

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ADA: Disability Harassment In The Workplace

By Bryan A. Chapman, Esquire

Employers have an affirmative duty to keep the workplace free of disability related harassment. Under the Americans with Disabilities Act (ADA), employers have an affirmative duty to keep the workplace free of disability related harassment. Fox v. General Motors Corporation, 247 F.3d 169 (4th Cir. 2001) (A fact finder could conclude from this evidence that the harassment Fox experienced was frequent, severe, physically harmful, and interfered with his ability to perform his job. In other words, Fox presented evidence of a workplace environment that a reasonable person could easily find hostile.)

  • If a supervisor engages in disability related harassment that results in a hostile work environment, to escape liability, an employer must demonstrate that: 1) it took reasonable steps to prevent and to quickly stop harassing behavior, and 2) the employee unreasonably failed to take advantage of the employer’s efforts to prevent or stop the harassing conduct or to avoid harm.
  • If a supervisor engages in disability related harassment that results in an adverse employment action (demotion, denial of promotion, suspension, termination, etc.), the employer has no affirmative defense.
  • If a co-worker engages in disability related harassment that results in a hostile work environment, an employer is liable if it knew or should have known about the harassment and it failed to take immediate and appropriate corrective action.
  • If a non-employee (e.g. customer) engages in disability related harassment that results in a hostile work environment, an employer is liable if it knew or should have known about the harassment and it failed to take immediate and appropriate corrective action.

In order to prevail on a disability harassment claim, an employee will have to prove that they:

  1. are disabled or regarded as being disabled;
  2. were subjected to unwelcome harassment;
  3. the harassment was because of their disability;
  4. the harassment affected a term, condition or privilege of employment; and
  5. the employer knew, or should have known, of the harassment and failed to take prompt remedial action.

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“Papering” an employee’s personnel file: Dr. Jekyll becomes Mr. Hyde

By Bryan A. Chapman, Esquire

“Papering” an employee’s personnel file: Dr. Jekyll becomes Mr. Hyde

Employers are advised to document the job performance of their employees. The documentation of job performance is particularly important when an employer is accusing an employee of poor job performance.  Write-ups and negative job performance evaluations can justify adverse actions, such as, denial of promotion, demotion, or termination.

However, unjustified write-ups and negative job performance evaluations may be evidence of discrimination and retaliation.  A careful examination of the personnel file portrays an employee who goes from being Dr. Jekyll to Mr. Hyde: a good employee suddenly becomes a bad employee.  This can raise suspicion and expose an employer to liability.

“Papering” occurs when an employer deliberately packs an employee’s personnel file with unjustified write-ups and negative job performance evaluations in order to justify an adverse action.  For instance, an employer can “paper” an employee’s personnel file by the following methods:

  • An employer may hold the employee to a higher standard than “similarly situated employees”.
  • An employer may scrutinize an employee.
  • An employer may singled out the employee for criticism or disciplinary action.
  • An employer may create a hostile work environment that interferes with the employee’s ability to perform their job.
  • An employer may solicit criticism of the employee from their co-workers and supervisors.
  • An employer may incite the employee’s co-workers and supervisors against them.
  • An employer may deliberately give the employee false write-ups and negative job performance evaluations.

Employers can use “papering” to cover-up discrimination and retaliation. Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“…he received much lower performance evaluations than he had received before filing his employment discrimination charge…  There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports, including two written reprimands.”); Etefia v. East Baltimore Cmty. Corp., 2 F.Supp. 751 (D. Md. 1998) (the court determined that the issue of whether documentation of the employee’s job difficulties was part of a plan to terminate him based on discrimination precluded summary judgment.)

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Teleworking is a win-win for workers and employers.

By Bryan A. Chapman, Esquire

Teleworking is a growing trend. Technology is making it possible. COVID-19 is a major catalyst. And, Big Tech is leading the way.

In response to COVID-19, in early March 2020, major tech firms, such as, Twitter, Facebook, Microsoft, Amazon and Google, were the first to allow their West Coast workers to work from home. Other employers, both private and public, followed the example of the major tech firms. Teleworking may have slowed the spread of COVID-19 in California’s Bay Area.

Despite pressure to reopen the economy, major tech firms have embraced teleworking for the time being. Social distancing and the health of their employees are major concern.

Mark Zuckerberg said half of Facebook’s 45,000 workers could be teleworking in the next 5 to 10 years. Twitter will allow its workers to permanently work from home. The tech industry’s acceptance of teleworking is likely to have a ripple effect in other industries.

Working from home will particularly benefit workers who have disabilities that could be exacerbated by COVID-19 exposure at the workplace. Older workers with underlying health conditions, such as, hypertension, diabetes, heart disease, etc., are especially vulnerable to COVID-19. For this group, a COVID-19 infection can be fatal.

Under the Americans with Disability Act (ADA), disabled workers can request a reasonable accommodation and employers may be obligated to provide a reasonable accommodation, provided it does not cause an undue hardship. Teleworking is the ideal reasonable accommodation for many disabled workers.

Economically, employers who adopt teleworking could reduce their office related expenses. Meanwhile, workers who telecommute could eliminate the hassle and expense of traveling to work on a daily basis.

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