Retaliation. /rəˌtalēˈāSH(ə)n/.
According to the Equal Employment Opportunity Commission, retaliation is the most frequently alleged basis of discrimination in the federal sector and the most common discrimination finding in federal sector cases. Yet retaliation is also one of the most misused and misunderstood employment discrimination concepts. As defined by Merriam-Webster, to retaliate means to repay in kind. For most people, retaliation brings to mind old adages such as an eye for an eye, but in the context of employment discrimination retaliation carries a much more nuanced meaning. Before we delve into that meaning, I’d like to draw your attention to a consistently confusing and frustrating phenomenon for employees and employers alike: a single word can have different meanings in different contexts.
In my line of work, I routinely have to navigate the choppy waters of explaining to frustrated individuals that, in a legal sense, they have not been discriminated against or are not disabled. One can imagine the indignation (and disbelief) that a person feels when told that, despite the pain from their broken bone or the humiliation suffered from their tactless boss, from a legal standpoint these distressing circumstances do not cross the seemingly ineffable thresholds of disability and discrimination. It is crucial that I remember, at all times, that just because an individual does not have legal recourse to resolve that which ails her does not mean she is not ailing. In other words, in order for me to be successful at what I do, I need to maintain large reserves of patience and empathy in equal measure. Both of these qualities should feature prominently in the discussion of fine differences between colloquialisms and terms of art with people who are hurting.
With that in mind, let’s return back to retaliation. The word is synonymous with grim concepts like revenge and retribution. Virtually every employee I’ve encountered who claims to have been retaliated against conjures up similar images of spiteful bosses angered by the legitimate complaints or requests of the employee. My boss retaliated against me for taking sick leave. My boss retaliated by giving me a difficult assignment because I complained about her to her supervisor. These occurrences may well be literal retaliation for the actions of the employee, but retaliation as a form of employment discrimination reads much more like a geometric proof than a dictionary definition.
Under Title VII of the Civil Rights Act of 1964, an employee can establish that she has been retaliated against by showing that three conditions have been met. First, she must have participated in an activity protected by Title VII. Then, her employer had to have taken an adverse employment action against her. Finally, she must show a causal connection exists between the protected activity and the adverse employment action. I will break down each condition in greater detail, but already we can see that Title VII’s definition of retaliation means quite a bit more than to repay in kind.
Activity Protected by Title VII
What does it mean to participate in an activity protected by Title VII? In order to answer that question, we first have to understand what Title VII is. Title VII is a federal statute that prohibits employment discrimination based on race, color, religion, sex, and national origin. Note that Title VII only mentions five protected classes. In law school I had to familiarize myself with the following Latin phrase: Expressio unius est exclusio alterius – the explicit mention of one is the exclusion of another. This means that Title VII only prohibits employment discrimination based on an employee’s membership to one of those five listed protected classes. What follows is that an activity protected by Title VII must bear some relationship to the participant’s membership to a protected class. Title VII does not define protected activity, but the Equal Employment Opportunity Commission takes the position that when an employee asserts her right to be free from employment discrimination based on her membership to a protected class, she has engaged in a protected activity. Most commonly, asserting that right would take the form of filing an employment discrimination complaint. However, many activities could qualify as protected; the key is being able to show that the activity bore a genuine connection to Title VII.
Adverse Employment Action
Once again, we find ourselves with the difficult task of parsing the difference between the legal and vernacular usage of words. As a legal term of art, adverse employment action refers to ultimate employment decisions. Naturally, in order to understand that definition one needs to know what an ultimate employment decision is. Unfortunately, as is the case with so many legalese there is no clear-cut definition for this term of art. Rather, over time case law will determine the legal meaning of otherwise undefined words and phrases, and as defined by case law ultimate employment decisions collectively refer to actions such as hiring, firing, promoting, granting leave, and compensating. Even this roundabout definition is an oversimplification of what adverse employment actions truly are, but it at least helps us understand what they are not. Tangential actions that merely have an attenuated connection to ultimate employment decisions are not adverse employment actions.
Causal Connection
Once the individual who is claiming to have been retaliated against can show that she engaged in a protected activity and suffered an adverse employment action, she must then show that the two events are causally connected. Simply put, the protected activity must have caused the adverse employment action. Unsurprisingly, this connection is often very difficult to prove. In my experience, the employee who believes she has been retaliated against will show that she engaged in a protected activity, and that at some point in time thereafter suffered an adverse employment action. However, any number of reasons outside of retaliation may have been the cause of the adverse action. For instance, this same employee may have had a number of performance issues that were the direct cause of the adverse employment action. Or, as I have seen numerous times, the individual who the employee believes was responsible for her adverse employment action actually lacked the authority or ability to cause the adverse action. Typically, employees will have to rely on circumstantial evidence to show that the adverse employment action they suffered was the result of retaliation rather than a legitimate, non-discriminatory reason.
Takeaway
The purpose of this brief article is twofold: 1.) to shed some light on a commonplace yet complicated area of employment discrimination law; and 2.) to illustrate the importance of differentiating terms of art from terms of expression. It is vital for employers and employees alike to understand what type of conduct is prohibited by law, and having a deeper understanding of retaliation will certainly go a long way towards that end. It is equally important for both groups to recognize that legal concepts extend far beyond the surface-level definitions of the words used to describe them. And if you happen to be an individual who understands these differences, be patient in explaining them to those who do not. No one ever wants to make a claim of retaliation- the chances are great that an individual who is making this claim is also suffering. Even if the claim of retaliation is misguided (or groundless), it is imperative that the explanation given to the individual is articulated respectfully and fully.
