A recent federal case in Ohio said that the threat of discipline, even if the employer never followed through, could be illegal “retaliation” against an employee for filing a complaint of racial discrimination against the employer.
One of the most important federal civil rights laws, known as “Title VII,” forbids discrimination and harassment in the workplace based on any of these attributes: race, color, national origin, sex or religion.
Filing a claim of illegal discrimination can be a frightening, brave thing for an employee to do considering how important a job can be for maintaining individual and family livelihood. A worker asserting such an accusation certainly thinks twice about how his or her employer is going to treat him or her after the accusation.
To be effective, Title VII and other anti-discrimination laws need employees to stand up for their rights when they are discriminated against. To encourage this, Title VII has an anti-retaliation provision that protects employees who assert their rights under the law from employer retaliation.
For example, it would be illegal under the anti-retaliation provision for an employer to fire someone for filing a race- or sex-discriminationlawsuit against his or her boss or employer — this is called “retaliatory discharge”.
The anti-retaliation provision is also meant to be a deterrent against retaliatory conduct on the part of employers.
The relevant language of Title VII says that the employer may not retaliate against an employee who “has opposed” unlawful discrimination at work. Opposing discrimination can include making a charge, filing a complaint or lawsuit, acting as a witness, taking part in an investigation, or even speaking out at work against an employer’s discriminatory or harassing action.
Very importantly, the original allegation of discrimination in which the employee took part does not have to ultimately result in an actual legal finding that discriminatory conduct happened. Whether the complaint goes anywhere or not, employer retaliation is prohibited as long as the employee’s action was based on a reasonable suspicion of discrimination.
The rate of retaliation claims brought by employees has been on a steady rise in the last decade or so, according to the Equal Employment Opportunity Commission. The EEOC is the federal agency that investigates and enforces employee allegations of violations of anti-discrimination laws like Title VII.
Elements of Retaliation
To establish a Title VII retaliation case, the claimant must show all of these four things:
- That he or she engaged in activity protected by Title VII like filing a discrimination claim, testifying in a discrimination case or participating in an investigation
- That the employer knew about the activity
- That the employer took a “materially adverse employment action” against the employee like termination, demotion, disciplinary action, or failing to promote or give a raise
- That there was a “causal connection” between the adverse employment action and the protected employee activity, meaning that the employer acted negatively toward the employee because of his or her protected activity; this is usually the hardest part of the claim to prove and may be shown by other employees in the same position who didn’t complain about discrimination being treated better or by an increase in discipline or scrutiny of the employee after exercising Title VII rights
An employer may assert that the negative employment action would have happened whether the employee engaged in Title VII-protected activity or not. For example, an employer might defend its actions by showing that the employee would have been fired anyway because of a record of poor performance or insubordination.
Parks v. Geithner
In December 2011, the U.S. District Court for the Southern District of Ohio issued an opinion in the Title VII race discrimination and retaliation case of Richard Parks Jr., who is African-American, against his former employer the Internal Revenue Service. Parks worked at the IRS more than two years as a Revenue Officer in Dayton.
At first he received positive feedback on his work, but later two different white, female supervisors treated him negatively. For example, some of his work was found to be inadequate, leading to two different warnings that he would be let go if the problems were not corrected. In addition, Parks alleged that one of these supervisors was “rude or hostile” as shown by rolling her eyes, sighing, sticking out her tongue, screaming and calling him “ignorant.”
He brought the situation to the attention of the Equal Employment Opportunity office that heard local IRS employee discrimination complaints. Information mediation began and no settlement was reached. During this time problems between Parks and the IRS continued. For example, an outside evaluator reviewed his work and found it deficient.
Parks filed a formal complaint with the agency and shortly thereafter was placed on a 60-day “opportunity period” for bad performance, during which he received no support or training and after which he was told he would be let go soon. He also was accused of misusing his work credit card for which a suspension was proposed. Finally he got a formal notice of proposed dismissal, but he quit before being terminated.
An EEOC administrative law judge held a three-day hearing, but before a decision was made Parks filed a lawsuit in federal court. The district court dismissed his race discrimination claims of disparate treatment and hostile work environment, finding no racial motive for the negative actions against him, and that because Parks quit before being fired he did not suffer a materially adverse employment action. The court also found that the employer’s actions did not rise to the level of a hostile environment.
Parks’ Retaliation Claim
The court, however, did find that even though the actual discrimination claim was not strong enough, Parks’ retaliation claim could proceed to trial. Parks alleged that his employer retaliated against him after he filed his complaint with the EEO office by subjecting him to “improper discipline.” The IRS argued that because he quit before he could be fired, there was only a threat of discipline and that a threat was not enough to be retaliation under Title VII.
The court disagreed and held that placing Parks in an opportunity period that could have led to termination was a materially adverse action that could influence someone not to complain about discrimination. The court also said that the threat of suspension for the credit card allegation “is also arguably materially adverse.” Therefore, Parks’ retaliation claim survived a motion for summary judgment and was allowed to proceed to trial before a jury.
The Parks case is noteworthy for its emphasis on the premise that a threat of adverse action can be illegal retaliation, even if not carried out. Anyone facing discrimination in the workplace, including retaliation by an employer for asserting it, should see the counsel of an experienced civil rights attorney for advice about how to proceed.