For employers, retaliation claims may very well be the scariest area of employment discrimination law because the merit of the employee's initial discrimination complaint may not prevent an employee from reaching a jury and ultimately prevailing on a retaliation claim. To establish retaliation, an employee need only show, generally, that he or she engaged in a "protected activity" (e.g., complaining of discrimination to management or filing a charge with the EEOC) and thereafter suffered an adverse employment action (e.g., termination, demotion, denial of a promotion), because of the protected activity. Perhaps for that reason, the number of retaliation-based charges filed with the EEOC has nearly tripled over the last 15 years.
Retaliation claims, which may be brought under several federal statutes, including Title VII Of The Civil Rights Act Of 1964, which prohibits discrimination based on race, color, religion, sex, and national origin, the Age Discrimination in Employment Act, and the Americans with Disabilities Act (ADA), have been a hot topic in the Fifth Circuit Court of Appeals. Several recent decisions have been issued regarding the initial burden of proof that employees must meet to prevent dismissal of retaliation claims and proceed to a jury.
In McDowell v. Home Depot, a former employee filed suit under the ADA, alleging, among other things, that she was demoted in retaliation for complaining of discrimination on a company hotline only one day before the demotion. The Fifth Circuit affirmed the district judge's dismissal of McDowell's retaliation claim, holding the one day that elapsed between the employee's complaint and her demotion (i.e. "temporal proximity"), without more, was an insufficient basis for the employee to establish a causal link between the two events. Significantly, Home Depot had introduced evidence that none of the four individuals involved in the decision to demote McDowell were aware of her call to the company hotline, and McDowell failed to introduce evidence to the contrary.
However, less than a month after the McDowell decision, the Fifth Circuit held in Bregon v. AutoNation that a car salesman's retaliation claim could proceed to trial because he was fired only one week after filing an EEOC charge and there was evidence that people at the car dealership were likely aware of the charge. The Fifth Circuit stated that the temporal proximity between the charge and the termination, coupled with the possibility that the employer was aware of the complaint, was sufficient to prevent dismissal of the claim. On the opposite end of the proximity spectrum, the Fifth Circuit addressed a retaliation claim based on a six-year-old sexual harassment complaint in Fabela v. Socorro Independent School District. In an alarming decision for employers, the school secretary's claim was allowed to proceed to a jury, even though she was terminated six years after filing her complaint, because there was evidence the school district cited the complaint as a factor in determining she was a "problem employee" at the time of her termination.
In light of the above cases, employers should exercise the utmost caution when deciding to take an adverse action against an employee who has, or may have, complained of discrimination at any time during his or her employment. It would be wise to take steps to investigate whether an employee has made any discrimination complaints prior to taking action against the employee to prove that prior protected activity is not influencing the proposed personnel actions. In all cases in which an adverse action becomes necessary, the employer should avoid any references whatsoever to any past complaints by the employee.