New Hampshire Municipal Association
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New Hampshire Town And City

Can You Recognize Retaliation?

New Hampshire Town and City, July/August 2018

By Sarah E. Burke Cohen, Esq.

Sally works for Bill’s Button Factory in the position of button maker. Her supervisor, David, sexually harasses her.  Wanda witnesses David’s sexual harassment of Sally. Sally and Wanda independently report the sexual harassment to Human Resources. Human Resources takes prompt remedial action by suspending David and conducting an investigation.  During the investigation, Sally and Wanda are both interviewed.  After the investigation, David is terminated.  Joe, who is David’s friend, takes David’s place as supervisor to Sally and Wanda. During Sally’s next performance evaluation two weeks after David is terminated, Joe rates Sally’s performance as poor, even though her performance has consistently been above average for the last five years. Joe transfers Wanda to third shift and demotes her to button collector. Was there retaliation covered under employment discrimination laws?

The first question is how retaliation is defined under state and federal employment discrimination laws. New Hampshire’s Laws Against Discrimination (NH RSA 354-A) define retaliation as being “an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to discharge, expel, or otherwise retaliate or discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under this chapter.” The Equal Employment Opportunity Commission (“EEOC”) similarly defines retaliation under federal discrimination laws as occurring “when an employer takes a materially adverse action because an individual has engaged in, or may engage in, activity in furtherance of the EEO (“Equal Employment Opportunity”) laws the Commission enforces.” See EEOC Enforcement Guidance on Retaliation and Related Issues dated August 25, 2016 (“EEOC Enforcement Guidance”). In simpler terms under state and federal law, an employer cannot take materially adverse action against an individual based on the individual’s engagement in a protected activity. But, what is a “protected activity” and “materially adverse action”?

Under state and federal law, an activity is considered “protected” if it is in furtherance of the EEOC laws and/or NH RSA 354-A. Participation as a witness and/or complainant in internal or external investigations of employment discrimination is considered a “protected activity.” It can also include opposing discriminatory practices in the workplace such as sexual harassment or assignment of tasks based on a protected class such as race and/or national origin. Likewise, an employee’s inquiry made in an attempt to determine if wages are discriminatory (i.e. male workers get a higher salary than female workers) is a protected activity. As is an employee’s request for an accommodation for either a disability or religious practice. The protected activity must be based on employee’s reasonable belief that a discriminatory action is or could occur. See EEOC Enforcement Guidance. For example, if an employee is a witness in an EEOC investigation into discriminatory practices at a company, the mere act of serving as a witness is considered a protected activity. As another example, if a female employee requests salary information from a manager because she has a reasonable belief her male counterparts are receiving a higher salary, the request for information is considered a protected activity.

A materially adverse action, according to the United States Supreme Court, is something that "might well deter a reasonable employee from complaining about discrimination." See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006). In its guidance on retaliation, the EEOC asserts the most obvious type of materially adverse actions are “denial of promotion, refusal to hire, denial of job benefits, demotion, suspension and discharge.” See EEOC Enforcement Guidance. In addition, materially adverse actions can be less obvious such as increased scrutiny, discipline, transfer to a less desirable position or a lower performance evaluation. Generally, the materially adverse action needs to occur so close in time to the protected activity that a retaliatory motivation may be inferred. Id. Likewise, materially adverse actions can also include harassment, intimidation, abuse, threats or reports to authorities. Id. For example, if a first shift employee requests a reasonable accommodation for a disability, it may be a materially adverse action if a supervisor transfers the employee to the less desirable third shift within days of the accommodation request.

Now that we have defined retaliation and its terms under state and federal employment discrimination law, the next question is, whom does the law protect? It protects applicants, current employees, and former employees (applicants/employees include full-time, part-time, seasonal and/or temporary) of employers covered by state and/or federal employment discrimination law. See EEOC Enforcement Guidance. This means an employer cannot refuse to hire an applicant merely because the applicant has assisted with or is a complainant in an employment discrimination complaint against a former employer.  Likewise, an employer cannot give a bad reference to an employee who assisted with or was a complainant in an employment discrimination complaint. For example, an applicant is interviewed for a job. Employer searched the Internet and discovered applicant participated in an employment discrimination complaint against a former employer. It may be retaliatory if the employer declines to hire the applicant based on the employee’s participation in the employment discrimination complaint.

Let’s look back at the fact pattern involving Sally and Wanda. Was there retaliation? Sally and Wanda both engaged in a protected activity, specifically, reporting David’s sexual harassment and participating in the subsequent investigation. Two weeks after the outcome of the investigation, Sally is receiving a poor review, in contrast to her general above-average performance, and Wanda is being transferred and demoted. These actions likely would be considered materially adverse actions and retaliatory given the close proximity in time to the protected activity.

Most employment discrimination complaints include retaliation as a component. See New Hampshire Commission for Human Rights: Commission Data at www.nh.gov/hrc; See also EEOC Enforcement Guidance. How can an employer avoid retaliation at the workplace? It begins by employers acknowledging that retaliation can occur if an employee engages in a protected activity. To curb the likelihood of an occurrence of retaliation, employers develop proper policies and procedures relative to employment discrimination, which should incorporate an easy to understand policy relative to retaliation. Of course, policies and procedures can only be effective if employees are aware of them. Regular training related to employment discrimination laws and company policies can ensure employees understand the policies and consequences of violating them. This is not to say an employer can never take adverse action against an employee who has engaged in a protected activity. Rather, an employer should be more cognizant about the actions it is taking to ensure decisions are being made based on a legitimate and non-discriminatory reason. Let’s look again at Sally. If Sally’s performance had been consistently poor and Joe’s performance review fell into line with all previous reviews, it likely could not be considered a materially adverse action and retaliatory.  The key component for an employer is to document actions against employees to ensure that the legitimate non-discriminatory reasons for the actions are recorded and could be provided as evidence should allegations of retaliation or other employment discrimination be made.

Sarah E. Burke Cohen is an attorney and the Assistant Director at the New Hampshire Commission for Human Rights.  Sarah may be reached by phone at 603.271.2767 or by email at sarah.burkecohen@nh.gov.

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