In Nasir, the U.S. Supreme Court held that, to prove retaliation under Title VII, a “but for” analysis applies. This is a higher standard than the “motivating factor” burden to prove discrimination under Title VII.
Nasir has been hailed as a big win for employers. But that’s only at summary judgment or perhaps at trial where the wins can be extremely expensive.
The real win for employers is that it makes it easier for us to take corrective action in response to retaliation without necessarily making admissions, at least under federal law. Why?
Sometimes there are multiple reasons for the adverse action. One is retaliatory.
In these cases, the employer can take corrective action in response to the retaliation and still preserve its defense under federal law by acknowledging that there were other legitimate factors that were considered. In other words, retaliation may have been a motivating factor but there is no but-for causation.
Keep in mind that, under some state laws, a motivating factor analysis applies to retaliation claims so that corrective action may be an admission, but one that mitigates damages.
Of course the best defense of all is that there was no retaliation. So a couple of suggestions:
- Make sure your EEO policy includes a robust non-retaliation provision. It should cover not only complainants, but also witnesses and others who have participated in the investigation. You also may want to address those who are associated with the complainant. Including it follows Supreme Court case law, but it also may stimulate claims in a very gray area. Your supervisory training also should make clear the broad group of employees who may be protected.
- Make sure your EEO policy, and your training of supervisors, defines unlawful retaliation broadly. It covers not only tangible employment actions but also material changes to the terms and conditions of employment. For example, it may cover changes in assignments, shifts, schedules, responsibilities, etc. even if no corresponding economic changes.
- Make clear in your supervisory training that the fact that a complaint lacks merit is ordinarily not a defense to unlawful retaliation. Generally speaking, only if the complaint is made in bad faith may it lose its protection. And, even if there is bad faith, the complaint still may be protected if raised in agency or court proceeding.
- After every investigation, regardless of whether you find a legal wrong, make clear the rules of the games on retaliation to both the complainant and the accused. Let the complainant know he or she should contact you immediately if he or she believes there is retaliation of any kind. Similarly, the accused needs to understand that retaliation of any kind will result in his or her discipline, up to and including discharge.
- Finally, keep an eye out for “retaliation by avoidance.” Some individuals accused of discrimination or harassment become so afraid of the complainant (and the risk of other meritless claims) that they avoid him or her. The problem is that the avoidance, if it affects material terms and conditions of employment, may be retaliatory claims. Because this avoidance is foreseeable, HR needs to work with the accused, too, to help him or her interact with the complainant.
- For the last few years, the most common charge filed with the EEOC is retaliation. Now start over at the top.
This Alert does not constitute legal advice, pertain to specific factual situations or establish an attorney-client relationship.