First Circuit Retaliation Update: Timing of Adverse Action Isn’t Enough to Impute Knowledge of Protected Activity to Employer

Retaliation cases often focus on the timing between an employee’s protected activity and an adverse employment action. The closer they are in time, the more likely it is that a jury could infer that the protected activity caused the adverse action (but not always). This causal link makes sense if there’s evidence that the employer actually knew about the protected activity when it took the adverse action. But what if that evidence doesn’t exist? Can the timing of an adverse action be used to infer that the employer knew about the protected activity and took action because of it? 

The First Circuit Court of Appeals recently tackled this question and answered it with a “no.” In Delaney v. Town of Abington, a police officer alleged that the Town of Abington retaliated against him because of a report he had made to the Massachusetts Attorney General’s office about the town’s traffic ticketing system. The district court granted summary judgment for the town because there was no evidence showing that the town knew about the officer’s report at the time of the alleged adverse actions. 

On appeal to the First Circuit, the officer pointed to evidence that he received a particular work assignment the same day he filed his report. He argued that the assignment was an adverse employment action and that a jury could have inferred that the town “knew that he had filed the report from the fact of this assignment.” 

The First Circuit disagreed. It noted that temporal proximity may be sufficient to establish causation where the “record independently provide[s] a basis from which a jury could reasonably conclude that the employer knew of the employee’s protected conduct at the time that the adverse employment action allegedly occurred.” But it rejected the officer’s argument that the temporal proximity of an adverse action can be used to infer that the employer knew about the protected activity and took action because of it.

EEOC Issues New Enforcement Guidance on Retaliation

Earlier this week, the EEOC issued its final Enforcement Guidance on Retaliation and Related Issues.  The new guidance is the first update to the EEOC’s compliance guide on retaliation since 1998, and it marks the end of the process that began in January 2016 when the EEOC first proposed the new guidance.  The new guidance covers retaliation under each law enforced by the EEOC, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Rehabilitation Act, the Genetic Information Nondiscrimination Act, and the Equal Pay Act.

The final guidance reflects the growing trend in retaliation claims – indeed, according to the EEOC, retaliation is the most frequently alleged basis of discrimination and is asserted in nearly 45% of all charges received by the agency.  The new guidance is not likely to slow this trend.  This is because it takes a broader view – and therefore a more employee-friendly view – on each of the three elements that an employee must prove to prevail on a retaliation claim: (1) protected activity; (2) an adverse action by the employer; and (3) a causal connection between the protected activity and the adverse action.

For example, with respect to “protected activity,” the EEOC notes that this can include either “participating” in a complaint process under one of the laws enforced by the EEOC (such as by filing a complaint or serving as a witness), or reasonably “opposing” discrimination made unlawful by one of the laws (such as by complaining about allegedly discriminatory conduct or otherwise communicating a reasonable belief of a perceived violation).  The guidance, however, further clarifies that although protection for “opposition” is limited to those individuals who act with a reasonable belief that the alleged conduct is unlawful, “participation” in an EEO process – including the filing of an internal complaint – is protected regardless of whether the underlying allegation is based on a reasonable belief that discrimination has occurred or is likely to occur.  The EEOC does point out in the guidance that its interpretation does not give employees free rein to file baseless complaints without consequence, but it also cautions that employers who dole out those consequences unilaterally, rather than bringing evidence of bad faith to light in the context of the EEO process, will face greater scrutiny.

The guidance also sets a low bar for what can constitute a materially adverse action.  According to the guidance, a materially adverse action is any action that would reasonably be likely to deter protected activity, which includes not just obvious work-related employment actions like discharge, suspension, refusal to promote or hire, or work-related threats, warnings, and reprimands, but also actions that have no tangible effect on employment or that take place entirely outside of work.  This would include, for example, threatening reassignment, scrutinizing work or attendance more closely than for other employees, or making disparaging remarks about the person to others or the media.

The EEOC guidance offers some “promising practices” for employers to use to reduce the likelihood of a retaliation claim. Chief among those is a clearly written anti-retaliation policy that provides specific examples of what actions may constitute retaliation, as well as a clear explanation that retaliation can be subject to discipline, including termination. Clearly, though, none of these practices will insulate an employer from liability or the obligation to analyze potential retaliation issues on a case-by-case basis.