Retaliation

 

What is retaliation in the employment discrimination context?

 

Under Pennsylvania law, retaliation is any negative employment action taken by an employer against an employee who has filed a complaint with the Pennsylvania Human Resources Commission (PHRC), objected to discriminatory practices in the workplace, or assisted in some way with a PHRC investigation. 1

Under federal law, retaliation is the illegal practice of firing, demoting, or harassing applicants or employees because they filed a discrimination claim, complained to their employer about workplace discrimination, or participated in an employment discrimination proceeding. Retaliation is illegal in any aspect of employment, including hiring, pay, promotion, training, and job assignment.2

 

What are Pennsylvania’s laws regarding retaliation?

 

The Pennsylvania Human Relations Act (PHRA) makes it an “unlawful discriminatory practice” to discriminate against an employee in any way because she “opposed any practice forbidden” by the PHRA or because she “made a charge, testified or assisted” in any proceeding under the Act.3 Retaliation against any person complaining of discrimination or assisting with the investigation of such complaints is regarded as an abuse of authority and will not be tolerated under Pennsylvania law.4

The practices forbidden by the PHRA include the firing of or refusal to hire an individual based on race, color, religion, sex, national origin or non-job related disability. Discrimination with respect to compensation, terms, or conditions of employment is also unlawful.5

Additionally, retaliation is illegal under Pennsylvania’s Equal Pay Law (EPL).6 Retaliation of this nature is punishable by a fine of no less than fifty dollars and no more than two hundred dollars.7 Each day a violation continues constitutes a separate offense.8

 

Who does the PHRA cover?

 

The PHRA covers employers who have four or more employees, including government agencies, charities, and religious organizations.9 It does not cover agricultural or domestic workers, workers who live in the personal residence of their employer as part of their job, or individuals employed by family members.10 All other employees are covered.

 

How do I bring a claim in Pennsylvania?

 

The Pennsylvania courts have repeatedly held that there are no separate common law remedies for sex discrimination, including wrongful termination and sexual harassment, because the PHRA preempts all other claims based on discrimination.11 You cannot go directly to court under the PHRA, rather you must first file a complaint with the PHRC.12
See How to File a Claim with PHRC.

 

How long do I have to bring a claim?

 

You have 180 days to bring a claim under the PHRA.13

 

How can I establish a retaliation claim under Pennsylvania law?

 

In order to establish a retaliation claim under the PHRA, you must demonstrate that:

  1. You engaged in a protected activity;
  2. Your employer was aware of the protected activity;
  3. Subsequent to participation in protected activity you were subjected to an adverse employment action. This must be serious enough to change your compensation, terms, conditions, or privileges of employment; and
  4. You engaged in a protected activity;
  5. There is a causal connection between participation in the protected activity and the adverse employment action.
The requisite causal connection element of a PHRA retaliation claim can be shown using evidence such as:
  1. Proximity between engaging in the protected activity and the adverse employment action;
  2. A pattern of antagonistic or retaliatory behavior by the employer;
  3. Inconsistent employer reasons for the adverse employment action;
  4. The employer’s behavior toward others;
  5. The employer’s refusal to provide a reference; or
  6. A change in the employer’s demeanor.15
When participation in the activity and the employment action occur within a short period of time, causation is inferred. If there is a substantial time period between the two, you must present circumstantial evidence of a pattern of antagonism in order to infer causation.

Once you have satisfied the required elements of a retaliation claim, your employer must present a “legitimate nondiscriminatory reason for the employment action.”16 The burden then shifts back to you to show that your employer’s reasons are merely a pretext for discriminatory actions. You must present evidence, either direct or circumstantial, that your employer should not be believed or that discrimination was most likely the motivating cause of your employer’s action.17

 

 

What are the federal laws regarding retaliation?

 

Under Title VII of the Civil Rights Act of 1964 (Title VII), it is illegal to discriminate against any employees or job applicants because they have opposed any illegal practice, or because they have participated in any Title VII proceeding.18

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.19

 

Am I covered by Title VII?

 

Title VII generally covers employers who employ fifteen or more people, but there are some limited exceptions.20 Although most federal employers are covered, employees of the Library of Congress, the General Accounting Office, and uniformed members of the military are not protected by Title VII. Other exemptions include: private membership clubs which have received tax exempt status, Indian tribes,23 and public international organizations such as the International Monetary Fund and the World Bank.24

 

How do I bring a claim under Title VII?

 

In order to bring a claim under Title VII, you have to go through the Equal Employment Opportunities Commission (EEOC). You cannot bring a case to court without first doing so.
See The EEOC Process for more information.

 

How long do I have to file my claim under Title VII?

 

Federal employees must file a claim with the agency committing the discrimination within 45 days.25 Because the PHRC is Pennsylvania’s Fair Employment Practices Agency, private employees have 300 days after the alleged discriminatory practice to file a complaint.26
See The EEOC Process for more information.

 

How can I establish a retaliation claim under Title VII?

 

In order to establish a retaliation claim under Title VII you must demonstrate that:

  1. You engaged in a protected activity. This may include opposing conduct you believe to be in violation of the Act, an informal complaint to a supervisor, involvement in an internal grievance procedure, or filing a claim under a different statute.
  2. An adverse employment action occurred. This must be a significant change in employment status such as firing, failure to hire or promote, significant reassignment, or a significant change in benefits. Employment actions that fail to result in changes in pay benefits, seniority, or responsibility are generally found insufficient to sustain a claim.
  3. There is a causal link between the protected activity and the adverse employment action. The ability to demonstrate that the employer was aware of the employee’s protected activity is important. The timing of alleged retaliatory conduct can be relevant.27
If there is no direct evidence of retaliation, you must first satisfy the three required elements of a retaliation case to shift the burden of proof to the employer. The employer must then produce a legitimate, nondiscriminatory reason for its actions. If the employer presents such a reason, the burden shifts back to the employee to provide evidence the employer’s reasons are merely a pretext for actual discrimination. 28
In the rare instances where an employee has direct evidence of retaliation, the burden of proof lies with the employer to show that the adverse action would have been taken regardless.29

 

 

What remedies am I entitled to under Title VII?

 

If the court finds that your employer has violated Title VII, there are several available remedies. The court has the freedom to demand that your employer take appropriate action, such as ceasing the discriminatory practice, hiring or promoting you, or paying you lost wages as far back as two years prior to your complaint with the EEOC. 30

However, if your employer can show that there was a non-discriminatory reason for its action as well as the discriminatory reason you proved, and that it would have taken the same action anyway, your remedies will be severely limited. The court is limited to telling your employer to stop the discriminatory practices, declaring that the practices are discriminatory, and paying attorney fees. 31

On the other hand, if you can show that your employer discriminated maliciously or recklessly, then the court may award extra payments beyond lost wages. These payments are limited by the size of your employer. 33

 

Retaliation: “It Happened to Me” 34

 

Martha Kenna, Marianne Hanna, Jacqueline Carracappa-Waddell, and Carol Brigandi applied for contributing member status in the George Clay Steam Fire Engine and Hose Company in 1988. They were the first women to apply for membership. In accordance with company procedures, an investigative committee reviewed each application and the committees’ recommendations were sent to the members of the company for a vote. All four women were blackballed during the voting procedures. As a result, Brigandi filed a complaint with the Pennsylvania Human Relations Commission (PHRC) on behalf of herself and the other women. They dropped their complaint in exchange for the company deleting the blackball provisions from its constitution.

The women reapplied for membership. The investigating committees rejected each application without a stated reason. The women then applied again for membership, the investigating committee recommended their memberships, but the company again voted not to admit them. Following this vote, the women filed a second complaint with the PHRC for sex-based discrimination and retaliation.

The PHRC hearing examiner found that the women had established their retaliation claim by proving (1) they had engaged in a protected activity by filing their initial PHRC complaint, (2) the company was aware of this protected activity, (3) their applications for membership were rejected, and (4) there was a causal link between the filing of the initial complaint and the rejection of their applications. The company could not produce any legitimate non-discriminatory reasons for rejecting the applications, and the PHRC found that the company’s reasons for denying the applications were merely pretextual. As a result, the PHRC ordered the Fire Company to stop engaging in sex-based discrimination and retaliation. Furthermore, the PHRC ordered the Fire Company to pay each woman a lump sum for certifiable travel expenses and lost wages incurred as a result of her complaint.35

 

 

1 Pennsylvania Human Rights Commission, http://sites.state.pa.us/PA_Exec/PHRC/complaint/Definitions/r.html. (Last visited Feb. 28, 2010).
2 U.S. Equal Employment Opportunity Commission, http://www.eeoc.gov/laws/types/retaliation.cfm. (last visited Feb. 28, 2010).
3 43 Pa. Cons. Stat. Ann. § 955 (West 2009).
4 201 Pa. Code § 203 (2010).
5 43 Pa. Cons. Stat. Ann. § 955 (West 2009).
6 Id. at § 336.8.
7 Id. at § 336.8.
8 Id. at § 336.8.
9 Id. at § 954(b).
10 Id. at § 954(c).
11 Brennan v. Nat’l Telephone Directory Corp., 850 F. Supp. 331, 345 (E.D. Pa. 1994); Clay v. Advanced Computer Applicatons, Inc., 559 A.2d 917 (Pa. 1989)
12 43 Pa. Cons. Stat. Ann. § 962(b) (West 2010).
13 Id. at § 959(h).
14 1 Summ. Pa. Jur. 2d Torts § 12:86 (2009).
15 Id.
16 Id.
17 Id.
18 42 U.S.C.A. § 2000e-3 (West 2009).
19 29 U.S.C.A. § 215(a)(3) (West 2009).
20 42 U.S.C.A. § 2000e(b) ( West 2009).
21 29 C.F.R. § 1614.103 (2009).
22 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-ii (last visited Mar. 1, 2010).
23 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-i (last visited Mar. 1, 2010).
24 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-iii (last visited Mar. 1, 2010).
25 29 C.F.R. § 1614.105(a)(1) (2010).
26 EEOC Compliance Manual “Threshold Issues”. http://www.eeoc.gov/policy/docs/threshold.html#2-IV-A (last visited Feb. 26, 2010).
27 14A C.J.S. Civil Rights § 246 (West 2009).
28 Id.
29 Id.
30 42 U.S.C.A. § 2000e-5(g)(1) (West 2009).
31 Id. at § 2000e-5(g)(2)(B)(i)-(ii).
32 Id. at § 1981a-(b)(1).
33 Id. at § 1981a-(b)(3).
34 George Clay Steam Fire Engine and Hose Co. v. Pennsylvania Human Relations Comm’n, 162 Pa.Cmwlth. 468 (1994).
35 Id. at 475.