According to EEOC statistics, the number one claim filed with the EEOC in employment discrimination settings was retaliation. Moreover, the federal court statistics on jury verdicts over the past five years readily demonstrate that even when claims involving the underlying complaint of discrimination are unsuccessful, the retaliation complaints enjoy greater success by far. The reason is very simple: it is substantially easier to prove a retaliation case than the underlying discrimination case. Think of it in terms of human nature: people can forgive misguided complaints of discrimination and even use appropriate common sense when determining whether an employer truly acted in a discriminatory way towards its employee. However, when an employer retaliates against an employee for even a misguided or outright false claim of discrimination, that is where juries draw the line.
Last month, the Second Circuit, again, made it quite clear in the case of Carr v. N.Y.C. Transit Auth., 22-cv-792, 2023 WL500565 (“Carr”) that significantly broader protections exist for those who claim retaliation, even if their underlying discrimination claim cannot be supported. Simply put, the review of both a discrimination claim and retaliation claim are generally identical. The review is performed under the well-known McDonnell Douglas Burden Shifting Framework. However, there used to be a time when an employee claiming retaliation had to show a real “adverse employment action” taken by the employer in response to the underlying claim of discrimination. We used to know adverse employment actions to be, typically, reduction in pay, reduction in hours, material modification in terms of duties or responsibilities and/or termination/suspension. No one could argue that these actions are adverse to the employee’s best interests.
However, what is “materially adverse” for the underlying discrimination claim is not the same as what is “materially adverse” in a retaliation claim. A “materially adverse” action that was “sufficiently severe and pervasive” such that it altered the “terms and conditions of employment” as mentioned above is not the standard in a retaliation claim. In reality, and as per case law, the jury/judge will look to whether the employer took an act or series of actions that “would dissuade a reasonable employee from making a complaint for discrimination.” Not only that, that action taken by the employer could be within or even outsider the workplace.
Think of it. What are the chances that an employer can establish enough basis for summary judgment where the question is whether a reasonable employee would be dissuaded from making a complaint of discrimination based upon the act of the employer? The answer is: it is near impossible - short of the most outrageous and frivolous assertion by the employee.
Accordingly, for employers, the rules of the road should be clear. Aside from having direct evidence that the employee assaulted his or her supervisor the day after making the complaint of discrimination (an exaggerated circumstance) the fact is that any action taken by an employer to an employee who has claimed discrimination in the workplace, where the employee takes issue with that action, becomes the basis for a claim of retaliation that will probably survive through trial.
Therefore, to be forewarned is to be forearmed. Anyone who supervises an employee after a complaint of discrimination is made, should be carefully instructed on the do’s and don’ts of how to deal with that employee during the pending litigation of the claim. And I note, there is caselaw to the effect that if the supervisor is unaware of the complaint of discrimination, that an action taken by that supervisor, which could normally be viewed as retaliatory, could not be so because the supervisor was not aware of the filing of a complaint in the first place. While that is very much true from a technical standpoint, trying to establish that the supervisor had absolutely no knowledge of the filing of a complaint in the workplace is not an easy task and, that too, will be subject to review by a factfinder.
The better course of action is to set a standard whereby the employee is treated no differently than any other employee in the workplace and record, in writing, any transgression or action that the employee has been engaged in after the filing of the discrimination complaint. By doing so, when the time is right, the employer will have a full record to show to the judge or jury that not only was the employee treated the same as any other employee with no action taken that was “materially adverse” to that employee’s interest, but also that the employee was taking advantage of the claim of discrimination in ways that the employer has itemized. This will give the employer a better chance for success in its retaliation defense while also providing the employer with enough proof that may withstand scrutiny before a jury, if the employer chooses to act, including but not limited to terminating that employee for those actions after the filing of the complaint.
Meyer, Suozzi, English & Klein, P.C. provides counsel on a full spectrum of employment law-related issues, engages in all aspects of employment-related litigation before state and federal courts and administrative agencies, and regularly handles mediations and arbitrations. Paul Millus, Esq. practices in the Litigation and Employment Law Departments of Meyer Suozzi’s Garden City, Long Island and New York City office locations.