Post-Employment Retaliation: Being Right For All The Wrong Reasons

Retaliation is the most frequently alleged basis of discrimination in the federal sector and the most common discrimination finding in federal sector cases.  Of all U.S. Equal Employment Opportunity Commission (EEOC) charges filed in fiscal year 2015, 44.5% asserted retaliation claims—a percentage that has nearly doubledover the last 20 years.  But how far does Title VII’s anti-retaliation provision reach?  The answer: pretty far, according to two U.S. Supreme Court cases, which greatly expanded who and what is protected under Title VII’s anti-retaliation provision.

First, in 1997, the Supreme Court held in Robinson v. Shell Oil Co. that the term “employees” in Title VII’s anti-retaliation provision extends to former employees.  In choosing to read the anti-retaliation provision broadly, the Supreme Court noted that exclusion of former employees from protection would “undermine Title VII’s effectiveness by allowing the threat of post-employment retaliation to deter victims of discrimination from complaining to the EEOC, and would provide a perverse incentive for employers to fire employees who might bring Title VII claims.” Id. at 338. Following Robinson, the EEOCfully recognizes that “[f]ormer employees . . . have standing to bring a claim for actions which occurred post-employment and are alleged to be in retaliation for protected activity engaged in while an employee.”
Second, in 2006, the Supreme Court held in Burlington Northern & Santa Fe Railway Co. v. White that Title VII’s anti-retaliation provision covers any employer action that would be “materially adverse” to a reasonable employee or applicant (i.e., any action that might “dissuade[] a reasonable worker from making or supporting a charge of discrimination.”).  Thus, unlike the substantive anti-discrimination provision, unlawful employment practices under the anti-retaliation provision are not limited to only those affecting an employee’s “compensation, terms, conditions, or privileges of employment.”
Applying these principles, “courts have routinely held that filing a meritless lawsuit or counterclaim against a former employee can form the basis of a retaliation claim.”  The Supreme Court’s liberal interpretation of Title VII’s anti-retaliation provision in Burlington Northern, however, pushes these principles one step further:  any nontrivial action that is likely to dissuade a reasonable worker from engaging in protected conduct can likewise form the basis of a retaliation suit.  For example, the D.C. Court of Appeals in Young & Co. v. Sutherlandheld that the anti-retaliation statute of the D.C. Human Rights Act, analogous to the anti-retaliation provision of Title VII, “contains no safe harbor for otherwise lawful acts done for an improper retaliatory purpose.”  In that case, the employer took legal action to foreclose on its former employee’s property, which served as collateral for a loan to the employee, after the employee asserted a gender discrimination complaint against the employer.  In discrimination cases, courts continue to hold that “the fact that the employer may have a valid claim does not preclude the employee from establishing that the employer’s motive in asserting the claim was impermissible retaliation.”  Id. at 368.  These holdings demonstrate the far-reaching protections guaranteed by state and federal anti-retaliation statutes—long after an employee leaves the company; to which truth is not always a defense.
On April 26, 2016, the Supreme Court took the opportunity to reaffirm the breadth of anti-retaliation statutes in Heffernan v. City of Paterson.  Here, petitioner, a police officer, was demoted on the mistaken belief that he had engaged in protected speech.  Specifically, that he had supported for mayor a candidate opposing the incumbent mayor.  The City’s defense was that the mayor had not engaged in illegal conduct, because—in fact—the officer was not engaged politically.  The Court emphasized that it is “the employer’s motive, and in particular the facts as the employer reasonably understood them,” that matters.  Id. at 5.  Justice Breyer, writing for the majority, recognized that “a discharge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake;” namely, “discouraging employees—both the employee discharged (or demoted) and his or her colleagues—from engaging in protected activities.”  Id. at 6-7.
In the ADA Amendments Act of 2008 (an Act of Congress, effective January 1, 2009, that amended the Americans with Disabilities Act of 1990 (ADA)), Congress articulated this principle in the statute itself.  Not only can an employer discriminate against a qualified employee or applicant who is disabled, but it is a violation of the ADA to discriminate against an employee or applicant the employer believes is disabled, even if he or she is not.  It is the intent of the employer, rather than the status of the claimant, which controls.
The reach of Title VII’s anti-retaliation provision has yet to be restricted by the courts—employer liability for retaliation does not end when the employee leaves the company and is not relieved because the employer’s action is based on verifiable facts.  The latter provides the fullest protection to former employees:  the focus is not on the former employee’s activity, but is instead on the employer’s “reasons for acting, accounting for what officials believed to be the facts and their motive in response to those perceived facts.”  Thus, employers must ensure that former employees who have engaged in protected activities are treated the same as former employees who have not.