Rarely when faced with an employee’s opposition to discrimination or other unlawful activity do employers fire the employee by telling them, “I am firing you because of your opposition to my unlawful activity.” Employers are usually subtler when they want to stop employees from speaking up. For example, they may change an employee’s job duties,[1] place a negative letter in an employee’s file,[2] or move an employee’s office to a less desirable location.[3] Most people would think these negative consequences are serious and would give rise to a claim for retaliation. Unfortunately, these issues are less straightforward than they should be because courts seldom reflect the views of most people.
Under Title VII and other employment laws, an employer cannot “discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice[.]” 42 U.S.C.§ 2000e-3(a). An employee alleging retaliation under Title VII must therefore show that “(1) she engaged in a protected activity; (2) her employer was aware of this activity; (3) the employer took adverse employment action against her; and (4) a causal connection exists between the alleged adverse action and the protected activity.”[4]
In a previous blog post, I explained how courts apply (and misapply) the first element of a retaliation claim: protected activity. Courts also have trouble applying the third element: proving an adverse employment action. To prove an adverse employment action, an employee 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.”[5]
While “the significance of any given act of retaliation will often depend upon the particular circumstances[,]”[6] some adverse employment actions will almost always be materially adverse. For example, “suspensions or terminations are by their nature adverse, even if subsequently withdrawn.”[7] Aside from these obvious adverse employment actions, however, courts’ ideas of what would dissuade “reasonable workers” can be out of step with actual reasonable workers.
Sandra Sperino, a law professor at the University of Cincinnati, sought to determine what reasonable workers think by asking survey participants whether the following negative consequences would dissuade them from speaking up:[8]
Negative Consequence
Percentage of Participants Who Would or Might Be Dissuaded
Being fired
90.53%
Demotion
83.16%
A negative evaluation in an employment file
80%
Supervisor threatened termination but did not immediately carry out the threat
68.42%
A change in job responsibilities with the same pay
62.11%
Office move to another location
55.79%
Paid seven-day suspension
53.68%
Social ostracism by coworkers
50.53%
Criticism from a supervisor about work performance during a meeting attended by coworkers
41.05%
A coworker stares rudely every day for a week
17.89%
Comparing these results to cases, Professor Sperino found a wide disparity between courts’ perceptions of reasonable workers and workers themselves.[9] For example, despite common sense and these survey results, the Third Circuit held that the commencement of a “progressive discipline process” would not dissuade a reasonable worker from asserting their rights at work.[10] Likewise, the Eighth Circuit held that a reasonable worker would not have been dissuaded by being “explicitly threatened with termination[.]”[11]
These extreme examples show that courts can impose overly stringent requirements for retaliation claims. That does not mean, however, that employees never win on these issues, because “[c]ontext matters.”[12] Employees can often overcome these court-made obstacles by pointing to context-specific reasons why a reasonable worker in a particular circumstance would feel dissuaded by something like a disciplinary process or a threat.[13] Employees cannot take for granted that courts will understand how their employers’ actions affect them. It falls to courageous employees who stand up to discrimination and their attorneys to make courts understand.
Sanford Heisler Sharp is committed to defending the rights of employees all across the nation. If you want to hold your employer accountable for wrongdoing, then please don’t hesitate to reach out to us to discuss your situation. Contact us onlinefor a case consultation.
[1] Kessler v. Westchester Cty. Dep’t of Soc. Servs., 461 F.3d 199, 209 (2d Cir. 2006) (upholding retaliation claim based on change in duties from supervisory to non-supervisory role).
[2] Alvarado v. Metro. Transp. Auth., No. 07 Civ. 3561(DAB), 2012 WL 1132143, at *13 (S.D.N.Y. Mar. 30, 2012) (upholding retaliation claim where negative letter was placed in employee’s personnel file).
[3] Loya v. Sebelius, 840 F. Supp. 2d 245, (D.DC 2012). (upholding retaliation claim based on “[i]nvoluntary relocation to a less desirable building that is isolated from all co-workers”).
[4] Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013).
[5] Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
[6] Id. at 69.
[7] Roberts v. Roadway Exp., Inc., 149 F.3d 1098, 1104 (10th Cir. 1998).
[8] Sandra F. Sperino, Retaliation and the Reasonable Person, 67 Fla. L. Rev. 2031, 2045 (2015).
[9] Id. at 2036 nn. 14-20. Professor Sperino also collected cases in which courts were more consistent with workers’ perceptions. See id. at 2050-51 nn.105-11 (collecting cases holding the opposite).
[10] Sconfienza v. Verizon Pennsylvania, Inc., 307 F. App’x 619, 622 (3d Cir. 2008).
[11] Littleton v. Pilot Travel Centers, LLC, 568 F.3d 641, 644 (8th Cir. 2009).
[12] Burlington, 548 U.S. at 69.
[13] E.g., Alvarado, 2012 WL 1132143, at *13 (explaining that letter in personnel file was “permanently in [employee’s] personnel file with potential use in a disciplinary setting”).