1. What does “retaliation” mean?
- (a) When you get even with somebody who makes you mad.
- (b) When you withhold a raise because a particular employee makes you mad.
- (c) It’s a pun - “re-TAIL-iation” means working in retail at Walmart.
- (d) When you refuse to hire someone because you don’t like them.
- (e) A, B and D.
- (f) None of these.
Answer: (e). In everyday English, “retaliation” means getting back at someone. In the context of retaliation law, “retaliation” means taking an adverse action against an employee because of the employee’s involvement in an EEO complaint, or other protected activity, in the workplace.
2. How many state and federal employment laws contain anti-retaliation provisions?
- (a) All of them.
- (b) Exactly 1,377.
- (c) Only Title VII and the ADA. And the ADA.
- (d) Pi.
Answer: (a), as far as I know. There may be one or two without anti-retaliation provisions, but I can’t think of any. What a worker must prove, though, varies greatly from law to law.
3. What does a retaliation plaintiff NOT need to prove?
- (a) that the employer took an adverse action against her.
- (b) that she engaged in protected activity, like filing an EEOC charge.
- (c) that her employer was evil and spiteful.
- (d) a causal link between the protected activity and the adverse action (or at least a contributing factor).
Answer: (c). A retaliation claim is not about general unfairness. The law requires the employee to prove that the employer took adverse action against her, that the employee engaged in protected activity, and that the protected activity was a motivating or contributing factor in the employer’s adverse decision. The plaintiff does not need to show bad character or spite, or even an explicit motivation. Of course, proof of a spiteful motive certainly helps the employee prove her case.
4. True or False: Joe makes a safety complaint, then quits. An employer can’t retaliate against a former employee.
- (a) True.
- (b) False.
Answer: (b), false. A U.S. Supreme Court case decided long ago held that retaliation can happen after employment ends - such as when a former employer gives the ex-employee a bad job reference.
Protected Activity
5. Brünhilda sincerely believes her employer discriminates against her because she’s a woman. (She’s wrong about that.) She makes a complaint of sex discrimination at her state fair employment agency. Her employer thinks she’s wrong, and demotes her out of anger. In court, the employer argues that Brünhilda did not engage in protected activity, since her charge was baseless. Is the employer right?
- (a) Yes.
- (b) No.
Answer: (b), no. Brünhilda may have engaged in protected activity by making a sex discrimination complaint in good faith, even if it was unfounded, depending on the law. She doesn’t have to prove the company did discriminate. Of course, the company could still defeat Brünhilda’s retaliation claim if it can convince a court that it demoted her for a non-retaliatory reason.
6. You’re the judge. The employee, Dave, says he reported race discrimination to human resources. While the company was investigating his claim, it accused Dave of stealing company property. The company said he could be suspended without pay for up to a month, pending an investigation. He was suspended for a month and did not get paid. At the end of a month the company let him come back, with back pay, because the company could not find any evidence Dave stole company property. Before trial, the employer makes the following argument: “Dave was not subject to an adverse action. He never lost any pay. Therefore, Dave was not the victim of retaliation.” What’s your response as a judge?
- (a) This case is dismissed. Dave lost nothing in the end, so there was no “adverse” action.
- (b) This case is dismissed. Internal complaints are not protected, only agency charges or lawsuits.
- (c) This will go to the jury, because a month unpaid would deter a reasonable person from complaining.
- (d) This will go to the jury, because I hate Wal-Mart.
Answer: (c). The Supreme Court decided a case very much like this several years ago, finding that a month unpaid would deter a reasonable worker from complaining of discrimination, even if the worker got back pay after a month. Thus, a suspension with back pay a month later was an “adverse action.” The only real difference between the Supreme Court case and Dave’s case is that the worker in the Supreme Court case had complained of sexual harassment.
7. True or False: Punishing an employee for “protected concerted activity” under the National Labor Relations Act is a form of retaliation.
- (a) True.
- (b) False.
Answer: (a), true.
8. A white employee, “Chlorine,” makes a claim of reverse discrimination. She yells a racial slur at the African American human resources rep while lodging her complaint. She is fired under the company’s no-harassment policy. After Chlorine files an EEOC charge of discrimination because of her race, what is most likely to happen?
- (a) Chlorine wins, because reverse discrimination is illegal.
- (b) Chlorine wins, because a firing right after a complaint is suspicious.
- (c) The company wins, because reverse discrimination claims don’t exist.
- (d) The company wins, because while she is allowed to file a charge, she crossed the line when she used a racial slur.
- (e) Chlorine wins, because she has a right to free speech, especially in the context of complaining about discrimination.
Answer: (d). Reverse discrimination is a recognized claim. A Title VII claim of discrimination is a protected activity, but there is a line she can cross. And yelling racial epithets, even in the context of lodging a discrimination complaint, can get her fired without it being retaliation. As for the First Amendment, that’s a red herring. The Bill of Rights constrains what government does, not private employers. So the government could not arrest Chlorine for complaining with a racial epithet, but private employers can indeed fire her for violating their harassment policies.
How did you score?
- 6-8 correct: You’re better at retaliation law than most. What are you doing reading a blog?
- 4-5 correct: Meets expectations. Not bad, but you could stand to know more.
- 2-3 correct: It must have been an accident that you landed here. You’ve been looking for cat videos, right?
- 0-1 correct: A federal marshal is standing next to me, about to serve you with process. (Just kidding.)
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