Religious Discrimination in the Workplace (PowerPoint) by suchenfz

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									         RETALIATION 101
         For EEO Managers



Barry Kramer
Deputy General Counsel
July 12, 2005
Finance Bldg, room 500
          The Fine Print


• Consult with agency counsel on specific
  cases
• bakramer@state.pa.us
               Retaliation
        The Hidden Liability Factor

Studies of federal discrimination and retaliation verdicts
from 1991-1999 reflect that the median verdict in
retaliation claims (in excess of $ 120,000) far exceeds the
median of claims of discrimination alone. According to the
latest report from the PHRC, retaliation is a claim in 86 of
162 complaints filed against Commonwealth agencies.
         EEOC, Retaliation Claims, All Statutes enforced by EEOC
                              FY 1992-2004




1992         1994     1996     1998      2000     2002     2003     2004

11,096       15,853   16,080   19, 114   21,613   22,768   22,690   22,740

15.3%        17. 4    20. 6    24.0      27.1     27.0     27.9     28.6




•        Allegations of retaliation doubled from 1992 to
         2002
•        As a percentage of total claims, allegations of
         retaliation almost doubled from 1992to 2004
A retaliation claim stands on its own even
where the underlying discrimination claim
is dismissed as long as the employee had a
good faith basis for asserting the underlying
claim of discrimination. Clark County v.
Breeden, 532 U. S. 268 (2001)
A comprehensive set of employment
policies must inform managers who are
involved in discrimination allegations,
whether as investigator, defendant or as
manager, to avoid exacerbating an
invariably volatile situation.
Awareness is key.
                Statutory Retaliation

Every federal and state anti-discrimination statute prohibits retaliation
against … whom?

These statutes include Title VII of the Civil Rights Act of 1964
(gender, race, color, religion, ethnic origin), the ADEA, FMLA, ADA,
PHRA and Pa. Whistleblower Law. Commonwealth Management
Directives 205.16 (Whistleblower Law) and 505.30 (prohibiting sexual
harassment) also prohibit retaliation.
How to Establish a Prima Facie
Claim of Statutory Retaliation?

What does prima facie mean and why
should you care?



        
                 Three-part test
Employee must demonstrate:
(1) Employee was engaged in activity protected by the
    statute;
(2) Employer took an adverse employment action against
    the employee;
(3) Causal connection between employee’s participation in
    the protected activity and adverse employment action.
    Robinson v. City of Pittsburgh, 120 F. 3d 1286, 1299
    (3d Cir. 1997).
       What is Protected Activity?

Statutes prohibit retaliation against persons who
have opposed any unlawful employment act or
practice or made a charge, testified, assisted, or
participated in any manner in an investigation
proceeding, or hearing regarding a complaint of
discrimination.
                   Adverse Employment Action

    Standards for determining if an employment action is “adverse”

•   alters “employee’s compensation, terms, conditions or privileges of
    employment.”
•   deprive him of employment opportunities
•   adversely affect status as employee.
•   significant or material change in employment status
•   Whether adverse employment action is severe enough to be actionable is
    objective, not subjective, standard.
• Very case-specific inquiry
                     Adverse Employment Action


    Courts look at a variety of factors to determine if there has been a
    material change in the terms or conditions of employment,
    including
•   Direct economic harm, such as refusal to hire, termination, demotion in salary
    or rank, denial of promotion, reassignment to less desirable position or
    location, particularly where it affects employee’s compensation or long-term
    job prospects. Economic harm not necessarily prerequisite to claim.
•   Changes in compensation, title, work schedule, work duties, or work location.
•   Not everything that makes an employee unhappy qualifies as retaliation.
    Otherwise, minor and even trivial employment actions that an irritable, chip-
    on-the-shoulder employee did not like would form the basis of a retaliation
    claim. “Mere” bruised ego is not serious enough
                  Adverse Employment Actions?

•   Court refused to grant defendant’s MSJ where detective assigned to road patrol
    after he filed EEOC complaint. Patrol seen as less desirable assignment.
•   No adverse action where employee “demoted” from senior fashion
    photographer to merchandise photographer. Just a bruised ego.
•   No adverse action where P laterally transferred from one location to another
    but no reduction in rank, salary, etc.
•   What about:
    Negative performance evaluation?
    Written reprimand that remains in personnel file?
    Oral reprimand?
    Transfer to undesirable work shift?
    Repeatedly turning up thermostat in employee’s office?
                  Negative job reference as
                     Adverse Action?

    Senate Bill 69, signed by Governor Rendell on June 15, provides that
    employer who discloses information about a former or current employee’s job
    performance to a prospective employer is immune from civil liability unless
    employee can prove that employer acted in bad faith.

•   Only refers to employee’s “job performance.” Act’s immunity does not apply
    where employer discloses information about personal life, off-duty activities
    or character traits unrelated to job performance.
•   Immunity does not apply to federal claims arising out of reference check. U.S.
    Supreme Court has held employer liable under federal anti-discrimination laws
    if employer , for discriminatory or retaliatory reasons, interferes with
    employee’s post-employment job opportunities in a job reference.
                             Causal Connection

    If a plaintiff meets the first two elements of his retaliation claim, the court will
    next look at whether there was a causal connection between the protected
    activity and the adverse employment action.
•   Employer must know of or suspect protected activity before adverse action
    occurred
•   Although temporal closeness by itself is not usually decisive, the closer in time
    that the adverse employment action is taken to the occurrence of the protected
    activity, the stronger the suggestion of causation. No bright line rule on time.
    Two days lapse has inference of causation; four months probably does not.
•   Other facts and circumstances are considered. Ongoing antagonism?
•   Once a plaintiff has established his prima facie case for retaliation, the
    defendant must show a clear and reasonably specific legitimate, non-
    discriminatory reason for the adverse employment action. Document.
    Document. Document.
Claim for Retaliation for Constitutionally Protected
         Conduct under First Amendment



First Amendment to the U.S. Constitution guarantees all citizens, including
public employees, protection from unwarranted interference with speech by
government. If there is some employment action against a public employee
because of protected activity, the employee may bring a retaliation claim
against the government based on the statute and/or the Civil Rights Act
(“section 1983”) if the claim is constitutionally-based.
         Another 3-Part Test (but a
              different one)
   Courts have established a three-part test for First Amendment retaliation claim
   by a public employee.

(1) Is speech/conduct constitutionally protected?
(2) Causation: substantially motivating factor in retaliatory action
(3) Government has opportunity to demonstrate it would have taken the same
    action even if the employee had not engaged in the protected conduct.

   Query:What is present in the test for claims of retaliation for statutorily
   protected activity that is missing for an alleged constitutional violation?
      Protected First Amendment Conduct


No requirement for adverse employment
action. Instead, it is sufficient to show
actual or potential chilling effect on the
free-speech rights of the public employee.
    Constitutionally Protected Speech or Conduct?


  Plaintiff must prove that the activity is on a matter of public concern
  (whether the activity can fairly be considered as relating to a political,
  social or community concern. The court will consider content, form,
  and context of a given statement, as revealed by the whole record.
  Courts continue to struggle over definition.
       Allegations of public corruption or wrongdoing
       Purely internal office matters and personal grievances
                     Balancing Test


After plaintiff has established that his speech is on a matter of public
concern, the government must demonstrate that its interest as an
employer in promoting the efficiency of the public services it performs
outweighs the employee’s interest in making the speech.
Governmental interests may include discipline by supervisors,
harmony among co-workers, performance of the speaker’s duties, and
regular operation of the enterprise.
    Causation: What is the Motivating Factor in the
                Employment Action?
• Once plaintiff establishes that the speech or conduct is constitutionally
  protected, the plaintiff must establish that the speech was a substantial
  or motivating factor in the alleged retaliatory action.
• Even if employer’s action was motivated by retaliatory intent, the
  government has opportunity to demonstrate it would have taken the
  same action even if the employee had not engaged in the protected
  conduct.
• Claims of retaliation almost always get to the jury.
  Relatively easy to make a prima facie claim

								
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