Title VII Retaliation Protection: Title VII's anti-retaliation provision is one of the strongest in employment law:
- Prohibits retaliation against employees who oppose discriminatory practices
- Protects participation in discrimination investigations, proceedings, or hearings
- Covers both formal complaints and informal opposition to discrimination
- Applies regardless of whether underlying discrimination claim has merit
Other Federal Anti-Retaliation Laws:
- Americans with Disabilities Act: Protects against retaliation for requesting accommodations or opposing disability discrimination
- Age Discrimination in Employment Act: Prohibits retaliation for age discrimination complaints
- Equal Pay Act: Protects employees who challenge pay discrimination
- Genetic Information Nondiscrimination Act: Covers retaliation for GINA-related complaints
Three Elements of Retaliation Claims
Protected Activity: Employee must engage in activity protected by law:
- Opposition: Objecting to or complaining about discriminatory practices
- Participation: Taking part in discrimination investigations, hearings, or proceedings
- Request for accommodation: Seeking reasonable accommodations under ADA
Adverse Employment Action: Employer must take action that could deter reasonable employee from engaging in protected activity:
- Traditional adverse actions: termination, demotion, discipline, pay reduction
- Non-traditional adverse actions: isolation, exclusion, schedule changes, reference refusal
- Burlington Northern standard: Any action that might dissuade reasonable worker from making discrimination complaint
Causal Connection: Must show connection between protected activity and adverse action:
- Temporal proximity between complaint and adverse action
- Differential treatment compared to similarly situated employees
- Departure from normal procedures or past practice
- Evidence of retaliatory animus or motive
Expanded Protection Under Burlington Northern
Burlington Northern & Santa Fe Railway Co. v. White (2006): Supreme Court significantly expanded retaliation protection:
- Retaliation standard broader than underlying discrimination standards
- Adverse action need not affect terms and conditions of employment
- Must only be materially adverse from perspective of reasonable employee
- Includes actions that occur outside immediate workplace context
Practical Impact: Post-Burlington Northern, retaliation claims cover:
- Actions that don't rise to level of adverse employment actions for discrimination claims
- Conduct affecting employee's overall work experience
- Non-workplace retaliation (references to new employers, professional reputation damage)
- Subtle forms of workplace punishment and isolation