Retaliation

 

What is retaliation discrimination?

 

Retaliation discrimination occurs when an employee is discriminated against for enforcing, or threatening to enforce, an employment right granted to them under Title VII of the Civil Rights Act of 1964 (Title VII) or a corresponding state employment law. 1

 

What are the federal laws regarding retaliation discrimination?

 

Under Title VII, it is illegal to discriminate against any employee or job applicant for opposing any illegal practice under Title VII, or because they have participated in any Title VII proceeding.2

The Equal Pay Act (EPA) also makes it illegal to discriminate against an employee because she has complained to an employer or any other person specified under the EPA, or because she has testified or will testify in any proceedings regarding a violation of the law.3 Retaliation of this nature is punishable by a fine of no less than fifty dollars and no more than two hundred dollars. Each day a violation continues constitutes a separate offense.4

 

How do I bring a claim for retaliation discrimination under federal law?

 

A retaliation claim may be established under Title VII if the employee can demonstrate the following three elements: 5

  1. They engaged in a protected activity, including opposing conduct they reasonably believe to be in violation of the statute (whether or not it actually is). Such conduct could include informal complaints to supervisors, engaging in an internal grievance procedure, or bringing suit under a different statute.
  2. An adverse employment action occurred. This may include firing, failure to promote, reassignment with vastly different responsibilities, or a major change in benefits. The action must be materially adverse, not simply an inconvenience. Without major changes in pay, benefits, seniority, or responsibility, the claim is likely to be insufficient.
  3. A causal link exists between the protected activity and the adverse employment action. The connection may be proven through either a direct or indirect method, which often includes establishing an inference of retaliatory motive based on the timing of events. The employee should also be able to prove that the employer knew about the employee’s protected activity.

 

 

What are the standards of evidence used in retaliation discrimination cases?

 

Indirect Evidence
McDonnell Douglas Corp. v. Green set forth a burden-shifting framework that requires the employee to establish the elements of retaliation.6 The employer must then produce a legitimate, nondiscriminatory justification for the employment action in dispute. If they accomplish this task, the employee must then provide evidence showing that the employer’s provided reason is a pretext for discrimination.

Direct Evidence
The employee provides evidence that retaliation was among the motives that prompted the adverse action in question. The employer must then prove by a preponderance of the evidence that the same employment decision would have been made regardless of the forbidden factor. Preponderance of the evidence is defined as “the greater weight of the evidence,” or more likely than not.7

 

What happens if I bring a retaliation charge at the same time as another charge?

 

It is very common for individuals to bring a claim of retaliation in conjunction with another type of Title VII claim, such as sexual harassment or wage discrimination. In North Carolina both claims have the same evidentiary standards, but you must establish the elements of each case separately.8

It is also likely that you will bring a retaliation charge after you have already brought a charge for another type of discrimination, since retaliation is often a response to an action. Historically, federal retaliation claims have a relatively high chance of success because, based on the nature of the charge, the employer has many times taken an identifiable adverse action toward the employee in close relation (time or circumstance) to the federally protected action.9

 

What are the North Carolina laws regarding retaliation discrimination?

 

North Carolina’s Equal Employment Practices Act (NCEEPA) establishes a public policy basis for non-discriminatory employment behavior. Unlike Title VII, however, NCEEPA does not specifically ban employers’ retaliatory behavior in response to the employee’s engagement in protected activities (e.g., such as complaining about sexual harassment).

North Carolina has also passed an act called the Retaliatory Employment Discrimination Act (REDA), which functions in a similar way to the retaliation clause in Title VII and the Equal Pay Act, forbidding employers from taking adverse discriminatory actions on employees based on their participation in a behavior protected by the respective Act. However, REDA is specific in its coverage, and applies only to protected activities afforded by the Wage and Hour Act, the Occupational Safety and Health Act, and the Mine Safety and Health Act, with additional provisions unrelated to sex-based workplace discrimination. 10

 

Are there tort alternatives to retaliation discrimination offered in North Carolina?

 

The common law in North Carolina recognizes a tort known as the “public policy wrongful discharge doctrine.”11 This cause of action uses the NCEEPA to provide a state common law remedy for situations that previously could only be relieved through federal law. 12

When a state statute, like the NEECPA, does not expressly forbid retaliatory firing against employees acting pursuant to the statute, you will be unable to sustain a claim under that statute. 13

 

Retaliation Discrimination: “It Happened to Me” 14

 

Carrie Nelson, a black woman, was employed by Mountaire Farms, a North Carolina poultry-processing corporation that employs 2,500 people across the country. When her direct supervisor made racially offensive comments about her in her presence, Nelson complained to the management. When the company management did little to respond to her discrimination complaint, Nelson decided to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in the Raleigh area office. In response to her complaints, Mountaire gave Nelson an “unjustifiably negative performance evaluation” and fired her less than two weeks after she filed her charge with the EEOC.

Carrie Nelson, a black woman, was employed by Mountaire Farms, a North Carolina poultry-processing corporation that employs 2,500 people across the country. When her direct supervisor made racially offensive comments about her in her presence, Nelson complained to the management. When the company management did little to respond to her discrimination complaint, Nelson decided to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in the Raleigh area office. In response to her complaints, Mountaire gave Nelson an “unjustifiably negative performance evaluation” and fired her less than two weeks after she filed her charge with the EEOC.

The EEOC was unable to reach a settlement with Mountaire and filed a lawsuit in federal court. Lynette Barnes, a regional attorney for the Charlotte District of the EEOC, explains, “[r]etaliation is an issue of special concern to the EEOC...Employees must be free to complain about unlawful practices without fear of retribution.” Nelson’s retaliation case against Mountaire is still pending.

 

 

1 EEOC, http://www1.eeoc.gov//laws/statutes/titlevii.cfm?renderforprint=1 (last visited Jan. 22, 2010).
2 42 U.S.C.A. § 2000e-3 (2009).
3 29 U.S.C.A. §215(a)(3) (2009).
4 Id.
5 14A C.J.S. Civil Rights § 246 (June 2009).
6 McDonnel Douglas Corp. v. Green, 411 U.S. 792 (1973).
7 Black's Law Dictionary 556 (3rd pocket ed. 2006).
8 Brewer v. Cabarrus Plastics, 551 S.E.2d 902 (N.C. Ct. App. 2001).
9 Prenkert, supra note 98.
10 N.C. Gen. Stat. Ann. § 95-241 (2009).
11 Susan K. Datesman, Sides v. Duke Hospital: A Public Policy Exception to the Employment-At-Will Rule, 64 N.C. L. Rev. 840 (1986).
12 Cohen, supra note 660, at 54.
13 See, Kosulandich v. Survival Tech., Inc., 997 F.2d 431 (1993) (a Missouri case in which three employees fired for filing unemployment benefits did not support a wrongful discharge claim because statutes did not explicitly forbid employer’s action).
14 EEOC Press Release, Mountaire Farms Sued for Retaliation, September 16, 2009, http://www.eeoc.gov/eeoc/newsroom /release/9-16-09c.cfm (last visited Jan. 23, 2010).